Portugal

A person against whom a final decision on extradition from Portugal to Brazil had already been issued filed an application for international protection. This application was rejected by the competent administrative body and was appealed to the court, whose decision is pending. The person was lawfully detained under the extradition proceedings. However, he requested that his detention be lifted while a decision on his application for international protection is pending, notwithstanding the fact that a final decision on extradition has already been issued.

Vague assertions regarding prison conditions and an alleged risk to the life of the appellant, who is the subject of the extradition request, without any specific details, do not require or necessitate that assurances be sought from the requesting State, particularly as this was never raised in the opposition submitted. As the Convention on Extradition between Member States of the Community of Portuguese-Speaking Countries does not provide for the possibility of refusing extradition on the grounds that granting it might entail placement in a prison with substandard conditions—a possibility reinforced by a generic allegation—it is not clear why there would be a need to order an investigation that was never suggested, except at the appeal stage. Furthermore, the refusal of extradition on security grounds is not supported in this regard, either in the Convention or in other subsidiary provisions.

Extradition from Portugal for the serving of a prison sentence for drug traficking in Brazil.I. The “humanitarian” clause provided for in Article 18(2) of Law No. 144/99 of 31 August does not apply to requests for extradition made under the Extradition Convention between Member States of the Community of Portuguese-Speaking Countries, signed in Praia on 23 November 2005 (and approved by Assembly Resolution No. 49/2008 of 18 July 2008), which, being a special convention, takes precedence under the terms of Article 3 of Law No. 144/99 of 31 August, as that Convention has exhaustively defined the situations in which extradition may be refused, albeit on an optional basis.II. Thus, extradition requested by one of the signatory states to the Convention on Extradition between Member States of Portuguese-speaking Countries may only be refused if one of the grounds for its inadmissibility, as set out in Article 3 of the said Convention, applies, or, on an optional basis, if one of the situations provided for in Article 4 of the Convention applies.III. Opposition to extradition is only valid if the person to be extradited is not the person sought or if one of the situations provided for in either Article 3 or Article 4 of the Convention applies; therefore, if the opposition does not fall within the legally prescribed grounds, any proceedings requested to substantiate such opposition must be dismissed as futile pursuant to Article 56(1), a contrario to Law No. 144/99 of 31 AugustIV. The family, employment or health situation of the person to be extradited does not meet the requirements for either mandatory or discretionary refusal of extradition, since it does not fall within any of the situations set out in Articles 3 and 4 of the Convention; consequently, the objection is invalid, and the requested extradition must be granted, provided that the remaining legal requirements are met.

The UK requested that Portugal surrender a Portuguese national accused of murder. At the time the international arrest warrant was issued, the EU notification made on behalf of Portugal under Article 603(2) of the EU‑UK Trade and Cooperation Agreement stated that Portugal would only surrender Portuguese nationals, on a reciprocal basis, in cases of terrorism or organised crime. When the requested person was arrested, a new notification was already in force, which no longer restricted the surrender of Portuguese nationals in those cases.The Portuguese Supreme Court held that, under the rules governing the temporal application of extradition law, the relevant notification was the one in force when the international arrest warrant was issued. Consequently, Portugal could not grant the surrender of one of its own nationals in a case that did not involve terrorism or organised crime.

Article 18-bis, paragraph 2-bis, cited above, whose violation is alleged by the appellant, must be read in conjunction with paragraph 2 of the same provision, according to which the criteria for assessing the lawful and effective residence or domicile in Italy of the requested person concern a foreign national who “lawfully and effectively resides or is domiciled continuously for at least five years in the territory of the Italian State.” Therefore, in the case of a person who, by his own admission, has been residing in Italy for no more than one year and six months, it is indisputable that the invoked provision cannot apply.

For the configurability of the ground for refusal of surrender based on the hypothesis of “international lis pendens”, it is necessary that the criminal fact forming the subject of the European arrest warrant corresponds to the same historical event for which proceedings are pending in Italy, taking into account the spatial, temporal and modal profiles of the facts, regardless of the legal classification given to them by the different authorities. The Court of Appeal of Rome did not make proper application of these principles, as it apodictically affirmed the diversity of the fact underlying the European arrest warrant from that still pending before the Public Prosecutor’s Office of Reggio Calabria and which has been the subject of a request for dismissal. The Court of Appeal, in fact, did not carry out any specific comparison between the alleged conducts in the different proceedings in their historical-naturalistic elements and with regard to the circumstances of time, place and person, as described in the measures in the case file. Where the fact is the same, the Court of Appeal must also give reasons, in light of the optional nature of the ground for refusal under Article 18-bis, paragraph 1, of Law No. 69 of 2005, as to the reasons which, in the specific case, may justify the refusal of surrender or its execution.

In the context of a European Arrest Warrant, the failure to attach to the warrant certain documents (judgement) enabling an understanding of the facts attributed to the requested person does not constitute a ground for refusing surrender, provided that the issuing State has nonetheless supplied the Italian judicial authority with all the elements necessary to carry out its review. Therefore, where a detailed and clarifying summary of the facts underlying the proceedings has been obtained, no defect arises.

All the relevant causes of interruption or suspension of the statute of limitations foreseen both in Portuguese Law and in Brazilian Law apply to extradition proceedings governed by the Extradition 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 foresees the only applicable grounds for refusal of extradition, which means that other grounds for refusal listed in Portuguese Law are not applicable.

In matters of the European arrest warrant, it must be excluded that the ground for refusal set out in Article 18(e) of Law No. 69 of 22 April 2005 applies—namely, the obligation to refuse surrender where the law of the issuing Member State does not provide maximum limits for pre-trial detention—in relation to a warrant issued by the judicial authority of Portugal, since its procedural system establishes defined time limits for pre-trial detention, up to the final judgment, depending on the nature of the offence and the stage of the proceedings.