Professor Huang Feng from the Institute of Criminal Law Science of Beijing Normal University told reporters that similar incidents often occur.
In 2007, Yuan Hongwei, an entrepreneur from Hunan, China, had an intellectual property dispute with an American company. He was lured to the UK by the other side in the name of negotiation and was arrested. Yuan Hongwei was lucky enough to return to China later, because there was a spelling mistake in the pinyin of the name on the London court arrest warrant.
Three years later, China citizens were trapped by the United States again. This time, the two China people involved were not so lucky. At the end of 2008, China citizen Xian Hongwei saw a PROM chip product sold by BAE on the Internet. This chip has advanced performance and is a substitute for storage equipment.
Xian Hongwei is engaged in the computer industry, and it is not unusual for him to be interested in chips. Therefore, he contacted Timothy Scott, the sales manager of the American branch, by email and asked about the possibility of buying the chip.
Timothy actively and solemnly recommended American Habor Trading International (HTI) Company, and emphasized that HTI Company is the only distributor of BAE Company in China, where Xianhong is located, and it is very willing to meet the purchasing demand in this area.
In April 2009, Yuan Hongwei began to contact malcolm lee, the head of HTI Company, by email and overseas telephone. During the contact, malcolm lee made it clear for many times that he and his company are very capable in the international sales of such products, and said that if the related products involve the issue of American export license, he can find a suitable way to meet the procurement requirements of relevant parties.
Xian Hongwei once made it clear that the goods were normally imported and declared by the logistics company and delivered in Beijing. But this proposal was firmly rejected by malcolm lee. When asked why, he didn't give a direct explanation.
On June 5438+ 10, 2009, Xian Hongwei and Malcolm Lee discussed the purchase intention of 40 PROM chips online, and then paid the first advance payment of nearly 20,000 US dollars by wire transfer.
On March 20 10, at the suggestion of malcolm lee, Xian Hongwei and his companion Li Li met him in Jakarta. During this meeting, malcolm lee told them that they could consider setting up branches in New Zealand and other places to export products.
20 10 in may, malcolm lee offered to deliver the goods in Hungary, saying that Hungary was the base of his Asian trade. He also asked to meet with Xian Hongwei himself, saying very firmly that he only saw himself and there was no third party. If Xian Hongwei doesn't go to Hungary, he will cut off cooperation. At the same time, Malcolm threatened the first advance payment and urged the threatened Xian Hongwei to remit the second advance payment. Fearing that the advance payment would be misappropriated, Xian Hongwei paid the second advance payment and agreed to malcolm lee's request.
Xian Hongwei and Li Li arrived in Budapest, Hungary, by plane at about 6: 30 a.m. on September 20 1 0. What they never expected was that they were arrested by the Hungarian police at the airport before entering the customs.
On the second day after their arrest, the Budapest City Court of Hungary quickly held a hearing on the United States' request for provisional arrest and extradition.
In the case that the court did not inform the Embassy of China and flatly refused the request of the parties to contact the Embassy of China, and in the case that two China people had no time to hire lawyers, they were forced to accept lawyers appointed by the court, and the trial began. The reporter saw through the trial record that, first of all, the presiding judge explained the international wanted order. PROM chip is an anti-radiation programmable read-only memory chip produced by an American manufacturer, which can be used in military and aerospace systems with high radiation environment such as outer space. This product has been listed in the list of US defense projects, the list of weapons restricted from going abroad and ITAR (Regulations on International Arms Trading).
Xian Hongwei and Li Li realized that malcolm lee, who had been dealing with them, was a secret agent of the United States.
As early as June 9, 20 10, the American court had issued arrest warrants for Xian Hongwei and Li Li. On August 25th, 20 10, the International Affairs Office of the Criminal Bureau of the U.S. Department of Justice secretly requested the Hungarian government to temporarily arrest the above two China citizens for the purpose of extradition, on the grounds that they deliberately bypassed the U.S. export control laws and tried to buy controlled microprocessor chips without obtaining any export license, which violated the U.S. Arms Export Control Act and the Regulations on International Arms Trade.
Xian Hongwei and Li Li didn't know that this product was included in the restricted arms export list at first. Although undercover agents later told them that they needed an export license, they always promised to help them solve this problem. Xian Hongwei and Li Li were trapped in this way.
During the trial, the judge also told the two defendants that there are two kinds of extradition.
First, the defendant agreed to extradite. In this case, the procedure will be simplified and the defendant's detention time will be shortened. The maximum detention period is six months, but it can be extended to two years according to the situation. According to the agreement between Hungary and the United States, if the extradition documents are not provided within 60 days, the defendant can be released, but this does not mean that the defendant must be released at the expiration of 60 days. Once they agree to be extradited, they can't retract their opinions. According to the evidence provided by the United States, they will be detained.
The other party does not agree to be extradited. However, they may also be detained with the permission of the Hungarian court according to the evidence provided by the United States.
Without any legal help, Xian Hongwei agreed to the extradition. Li Li began to ask for extradition to China, but the judge told him that the court could only extradite him to the United States, and the laws of China were invalid. Li Li also asked to contact the Embassy of China, saying that she could not make a decision without knowing the opinions of the Embassy. The presiding judge said that after the ruling, he could contact the Embassy of China and inform the defendant that he had not violated Hungarian law and should bear legal responsibility from the United States. Li Li no longer insisted and agreed to extradition.
The court-appointed defense lawyer said that no conditions were found to prevent extradition. According to the description of the two defendants, it is suggested to adopt a summary extradition procedure. The court-appointed translator did not explain any court procedures or the contents of court documents, but only prompted Xian Hongwei and Li Li to sign Hungarian documents that they could not understand at all.
In this way, the court ruled that the two defendants were temporarily arrested according to law, and the conditions for extradition were established.
The two defendants then entrusted a new defense lawyer to appeal, but the court held that the lawyer appointed by the court had given up the possible legal remedies. Therefore, according to Hungarian law, the new lawyer entrusted in this case no longer has the appeal conditions, and the appeal request is rejected. The reporter noticed that the trial lasted only one hour, including the time of translation. It seems a foregone conclusion that Xian Hongwei and Li Li were extradited to the United States. Huang Feng, an expert in international criminal law and a professor at the Institute of Criminal Law Science of Beijing Normal University, believes that the United States and Hungary have seriously violated due process of justice, leaving two China citizens in a situation of being trampled on.
First of all, according to the Hungarian Law on International Criminal Judicial Assistance and the extradition treaty signed between Hungary and the United States, the extradited person will lose the protection of the "specificity principle" enjoyed by general extradition under the simple extradition procedure. That is to say, once summary extradition is implemented, the United States has the right to criminally prosecute the extradited person, take personal coercive measures or hand him over to a third country without the consent of the competent Hungarian authorities.
Because summary extradition will make the extradited person lose the protection of the "specificity principle", Hungarian law clearly stipulates that the judge must inform and warn the requested person of the above legal consequences and risks before starting the summary extradition procedure. The Budapest City Court did not follow the above-mentioned legal notification procedure at all.
Second, according to the first paragraph of Article 8 1 of the Hungarian Law on International Criminal Judicial Assistance, the court should make and sign a "separate record" with Xian Hongwei and Li Li respectively. The court did not make this "separate transcript".
Thirdly, according to the extradition treaty signed by Hungary and the United States: "If the crime is committed outside the territory of the requesting country, extradition shall be granted when the laws of the requested country also stipulate penalties for crimes committed outside its territory under similar circumstances. If there is no provision in the law of the requested country, the administrative organ of the requested country's government may allow extradition as appropriate. "
According to the above provisions, if Hungarian law stipulates that such extraterritorial acts should also be investigated for criminal responsibility, the two China nationals can be extradited. However, according to Hungarian criminal law, there are only three situations in which acts committed by non-Hungarian citizens abroad are investigated: crimes against the state, crimes against humanity, and acts investigated by Hungarian laws and the laws of the country where the acts occurred. That is to say, only when the acts of Xian Hongwei and Li Li should be investigated for criminal responsibility according to the laws of China and Indonesia can they constitute extraditable crimes, but the court has not conducted any investigation.
Professor Huang Feng believes that it is groundless and reckless for the court to hastily declare that the alleged act meets the conditions for extradition without knowing and finding out whether it violates the laws of the country where the act took place. Violate internationally recognized legal principles.
After carefully analyzing the whole incident, Huang Feng told reporters: "The actions of these two China people are only crimes unilaterally stipulated by American law, and they are not illegal in China. The entrapment of China citizens by the United States is a double violation of individual rights and national judicial sovereignty. "
It is reported that according to internationally recognized legal principles, the US police can only use secret investigations in its territory. If they conduct secret investigations or "control delivery" abroad, they can only target international crimes and must obtain the consent of foreign governments. Without authorization, American agents extended their criminal investigation activities to China and Indonesia, which constituted an infringement on the judicial sovereignty of these two countries.
"It is difficult for ordinary people to know whether a civilian technology or product is included in the list of military materials prohibited from export in the United States. The practice of American agents setting traps to trap China citizens not only makes China businessmen feel insecure, but also makes businessmen all over the world who deal with the United States feel insecure! " Huang Feng said.
And why Hungary this time? According to industry analysts, Hungary has the most relaxed extradition system and the simplest extradition conditions. It can be seen that the trapping behavior is carefully planned.