Refusal of Extradition under the Convention between the Member States of the Community of Portuguese-Speaking Countries
Refusal of Extradition under the Convention between the Member States of the Community of Portuguese-Speaking Countries
The Extradition Convention between the Member States of the Community of Portuguese-Speaking Countries, signed in Praia on 23 November 2005, entered into force in the Portuguese legal system by virtue of the Resolution no. 49/2008, of 18 July, of the Portuguese Parliament.
I. Aim
The adoption of the Convention aimed to strengthen international judicial cooperation in criminal matters between the Contracting States by simplifying and streamlining extradition procedures, recognised as an essential tool for an effective fight against transnational crime.
In this context, the Convention now governs extradition requests between Contracting States, as well as the relevant procedure, taking precedence over the regime set out in Law No. 144/99 of 31 August, the application of which is of a subsidiary nature (see Article 3(1) of Law No. 144/99).
This note aims to summarise the main grounds for refusal of extradition provided for in the Convention, with a particular focus on the points where it diverges from the subsidiary regime of Portuguese Law.
II. The obligation to extradite
Under the Convention, Contracting States undertake, on a reciprocal basis, to extradite whenever the following conditions are cumulatively met (see Article 1 of the Convention):
a) The person concerned is in the territory of a Contracting State;
b) That person is wanted by the competent authorities of another Contracting State;
c) The purpose of the request is to initiate criminal proceedings or to enforce a custodial sentence; and
d) The acts in question constitute an offence for which the courts of the requesting Contracting State have jurisdiction.
As with the regime provided for in Law No. 144/99 (see Article 31(2) of Law No. 144/99), extradition, regardless of its purpose, is subject to the principle of double criminality, requiring that the facts constitute an offence under the law of both the requesting State and the requested State and be punishable, under both legal systems, by a custodial sentence of a maximum duration of not less than one year (see Article 2(1) of the Convention).
With regard to extradition for the purpose of serving a custodial sentence, the Convention adopts a more stringent criterion than Portuguese Law ― whilst Law No. 144/99 permits extradition where the remaining sentence to be served is four months or more (see Article 31(4) of Law No. 144/99), the Convention sets this threshold at six months (see Article 2(2) of the Convention), thereby slightly restricting the cases in which extradition may be granted.
In accordance with the provisions of the Portuguese Law (see Article 31(3) of Law No 144/99), where the extradition request relates to the commission of several offences, and provided that the principle of double criminality is satisfied in respect of all of them, it is sufficient for one of the offences to meet the aforementioned requirements for extradition to be granted in respect of all of them (see Article 2(3) of the Convention).
III. Limitations on the obligation to extradite
Once the conditions for the obligation to extradite have been met, the Contracting States must surrender the requested person, unless there is ground for the inadmissibility of extradition or a ground for the optional refusal of the request.
A) Inadmissibility of extradition
As regards the grounds for inadmissibility of extradition, although the Convention does not provide for all those set out in Portuguese Law, it introduces no new provisions compared to the regime under Law No. 144/99, with all the grounds in this international instrument having an equivalent in one of the provisions of Articles 6 to 8 of that national law. Thus, under Article 3 of the Convention, extradition shall be prohibited where:
a) the offence is punishable by death or by a penalty involving irreversible physical injury (see Article 6(e) of Law No 144/99).
b) the offence is one which the requested State considers to be political or connected with a political offence (see Article 7(1)(a) of Law No 144/99).
c) the offence is a military offence which does not simultaneously constitute an offence under ordinary law (see Article 7(1)(b) of Law No 144/99).
d) the person sought has been finally tried, pardoned, granted amnesty or granted a pardon in the requested State in respect of the act or acts on which the request for extradition is based (see Article 8(1)(c) of Law No 144/99).
e) the person sought has been convicted or is to be tried in the requesting State by a special court (see Article 6(d) of Law No 144/99). And
f) the criminal proceedings or the sentence are time-barred under the law of the requesting State or the requested State (see Article 8(1)(c) of Law No 144/99).
However, it should be borne in mind that national law provides for other grounds for mandatory refusal of extradition which are not reflected in the Convention, namely refusal where:
a) the proceedings do not satisfy or comply with the requirements of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, or of other relevant international instruments in this field ratified by Portugal (see Article 6(a) of Law No 144/99).
b) there are substantial grounds for believing that cooperation is sought for the purpose of prosecuting or punishing a person on account of their race, religion, sex, nationality, language, political or ideological convictions, or their membership of a particular social group (see Article 6(b) of Law No 144/99).
c) There is a risk of aggravating a person’s procedural situation for any of the reasons indicated in the previous subparagraph (see Article 6(c) of Law No 144/99).
d) The offence is punishable by imprisonment or a security measure of a perpetual or indefinite nature (see Article 6(f) of Law No 144/99) ([1]).
In principle, grounds for refusal provided for in national law which are not provided for in the Convention do not apply, even on a subsidiary basis, to cases to which the latter applies.
However, the underlying ground for refusal may apply, not by virtue of the application of national law, but by virtue of the direct application of provisions of other international instruments directly applicable in the Portuguese legal system, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms or the International Covenant on Civil and Political Rights.
B) Grounds for discretionary refusal
With regard to the grounds for optional refusal of an extradition request provided for in the Convention, three situations can be distinguished: (i) grounds directly provided for in national law; (ii) grounds directly provided for in national law, although classified therein as grounds for the inadmissibility of extradition; and (iii) grounds with no direct counterpart in national legislation.
As regards the grounds for optional refusal provided for in Law No 144/99, the following are also found in Article 4 of the Convention:
a) if the person sought is being tried in the territory of the requested State for the same offences on which the extradition request is based (see Article 18(1) of Law No. 144/99); and
b) if the person sought is considered not criminally responsible by reason of age (see Article 18(2) of Law No. 144/99).
As regards the grounds provided for in national law, although these are classified therein as situations of inadmissibility of extradition, rather than as mere grounds for optional refusal, the following are highlighted in the Convention:
a) if the person sought is a national of the requested State (see Article 32(1)(b) of Law No 144/99); and
b) if the offence giving rise to the extradition request is punishable by a custodial sentence or a security measure involving deprivation or restriction of liberty of a perpetual nature or of indefinite duration (see Article 6(f) of Law No 144/99).
It should be noted, however, that both of the aforementioned grounds ultimately correspond to situations already covered by constitutional provisions which, save in exceptional circumstances, prohibit the extradition of Portuguese citizens (cf. Article 33(3) of the CRP) ([2]) and preclude extradition for offences which, under the law of the requesting State, carry a life sentence or a sentence of indefinite duration (see Article 33(4) of the CRP) ([3]), which means that if none of the necessary conditions laid down in the Constitution are met, the Portuguese State must refuse extradition.
Finally, as a new feature compared to national legislation, the Convention establishes as a ground for optional refusal the situation where the person sought has been convicted in absentia for the offence on which the extradition request is based, unless the requesting State ensures the possibility of an appeal, a retrial or other equivalent legal protection (see Article 4(e) of the Convention).
([1]) Even if this ground for refusal arises, under national law it is mitigated by the possibility for the requesting State to provide guarantees that such penalties will not be enforced, or to accept their conversion by a Portuguese court in accordance with the provisions of Portuguese law applicable to the offence giving rise to the conviction.
([2]) “The extradition of Portuguese citizens from national territory is permitted only under conditions of reciprocity established in an international convention, in cases of terrorism and international organised crime, and provided that the legal system of the requesting State guarantees a fair and equitable trial.”
([3]) “Extradition shall only be permitted for offences which, under the law of the requesting State, are punishable by a penalty or security measure involving deprivation or restriction of liberty of a perpetual nature or of indefinite duration, if, in that regard, the requesting State is a party to an international convention to which Portugal is bound and offers guarantees that such a penalty or security measure will not be applied or enforced.”