🇵🇹 Portugal → 🇧🇷 Brazil

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 Court of Justice of Santa Catarina considered whether a request to transfer the execution of a Brazilian sentence to Portugal could be processed despite a final Portuguese decision authorising the convicted person’s extradition to Brazil. The Court held that sentenced-person transfer is an autonomous and potentially alternative mechanism of international legal cooperation and that the prior extradition decision did not make the transfer request legally inadmissible. It therefore reversed the lower court’s refusal and authorised the request to be forwarded to Brazil’s central authority, the Department of Asset Recovery and International Legal Cooperation, for administrative assessment and formal consultation with Portugal. The Court did not order the transfer itself, which remained subject to the agreement of both States and verification of the applicable statutory and treaty requirements. A subsequent decision of the Criciúma Criminal Enforcement Court confirmed that conditional release does not extinguish the remaining sentence and therefore does not prevent the administrative processing of the transfer request. The existing supervision conditions were maintained pending the decision of the competent Brazilian and Portuguese authorities.

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.