Abstract
This chapter provides an analysis of the Portuguese legal system insofar as concerns judicial protection in transnational criminal proceedings. After depicting some of the essential features (normative as well as organic) of Portuguese criminal procedure, the chapter addresses the rules that govern cooperation in criminal matters with other states, more specifically extradition, transfer of prisoners and mutual legal assistance. These mechanisms are addressed both in their classic form and in their European variation, based on mutual recognition. The topics covered include the subject matter of judicial control, the scope of judicial protection, pleading requirements, guarantees given by the requesting state and the effectiveness of judicial review. The research conducted suggests that the norms currently in force afford substantial protection to individuals targeted by criminal proceedings with transnational implications, but there is room for improvement, especially regarding mutual legal assistance.
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Notes
- 1.
Enacted through the Decree of 10 April 1976.
- 2.
- 3.
Enshrined in Articles 24, 25 and 27, respectively.
- 4.
A criminal penalty cannot be applied in the absence of guilt/blameworthiness, but the perpetration of a criminal act together with the criminal dangerousness of the offender may lead to the application of a security measure.
- 5.
Article 27 (3) (c).
- 6.
See notably Article 400 of the Code of Criminal Procedure (CCP), and, e.g., the rulings of the Constitutional Court no. 186/2013, of 4 April, and no. 101/2018, of 21 February; on the topic, see Lemos (2010), p. 923 f.
- 7.
For further details, see below.
- 8.
See Article 3(2) of Law no. 144/99, of 31 August (LICCM).
- 9.
More specifically in Articles 57 f.: on this, see Caeiro and Costa (2012), pp. 550 f.
- 10.
If a person has already been designated as arguido when he/she is questioned, he/she must be informed of these rights again and, if necessary, given proper elucidation: Articles 61 (1) (h), 141 (4), 143 (2) and 144 (1) of the CCP.
- 11.
On the pre-trial phases of Portuguese criminal procedure see further below.
- 12.
E.g. in all the interrogations to which he/she may be subjected: see Articles 141 (3), 143 (2) and 144 of the CCP.
- 13.
For a detailed depiction, in English, of the Portuguese pre-trial criminal procedure, see Caeiro and Costa (2012), pp. 540 f.
- 14.
Articles 262 f. CCP.
- 15.
Articles 286 f. CCP.
- 16.
Dias (1974), p. 144.
- 17.
- 18.
See Article 33 (5) of the Constitution.
- 19.
Implying this understanding, see also Dias (1985), pp. 14 f.
- 20.
See notably Article 3 (2) LICCM, and Articles 16 (6), 17 (4) and 34 PT-EAW.
- 21.
See Article 53 LICCM.
- 22.
See Law no. 68/2019, of 27 August, which establishes the Statute of the PPO (SPPO). The objectivity and autonomy by which the PPO abides leads to its qualification as a ‘judiciary authority’, placing it closer to the judicial function stricto sensu than to the administrative function: see Dias (1995), pp. 354 f. and 8 f.
- 23.
See Article 2 of the SPPO.
- 24.
See, on the high-profile case of Abu Salem’s extradition from Portugal to the Republic of India (also infra Sects. 8.5.3 and 8.6.1.3), the ruling of the Constitutional Court no. 360/2012, of 5 July; the ruling of the Court of Appeal of Lisbon of 14 September 2011; and the rulings of the Supreme Court of 21 October 2011 and of 13 December 2011, no. 130/11.3YFLSB.
- 25.
Who is also the competent authority for requesting the participation of Portugal in an extradition procedure taking place in another State): see Articles 47 and 69 (4) LICCM.
- 26.
Unless it believes, as noted, that the request should not be granted. See Article 58 (1) LICCM.
- 27.
See Article 21 (1) LICCM and e.g. Article 9 of PT-EAW.
- 28.
From North to South: Guimarães, Porto, Coimbra, Lisboa and Évora. On the Portuguese judicial organisation, see Law no. 3/99, of 13 January.
- 29.
Which sits in Lisbon.
- 30.
According to Article 36 of the Portuguese Law on the European Arrest Warrant (Lei no. 65/2003, of 23 August: PT-EAW), competence for issuing EAWs belongs to the authority competent for ordering the detention or the arrest of the person in the context of the national criminal proceedings that give rise to the European arrest warrant.
- 31.
See Articles 2 and 3 SPPO.
- 32.
Currently, Law no. 96/2017, of 23 August, which applies to the biennial 2017–2019 and assigns priority to the prevention and investigation of such offences as terrorism, cybercrime, trafficking of human beings, forest arson and domestic violence (Articles 2 and 3).
- 33.
Article 21 (2) and (3) and Article 24 LICCM.
- 34.
See Caeiro (2004), pp. 124 f.
- 35.
Insofar as concerns extradition, see Articles 46 f. LICCM.
- 36.
The only ground for refusal the appraisal of which seems to be an exclusive competence of the Minister of Justice is the general reciprocity clause regulated in Articles 4 and 6 (4) LICCM: see the Preamble of the Decree-Law no. 43/91, of 22 January (which preceded the LICCM); the ruling of the Court of Appeal of Lisbon of 4 January 2004, process 3880/2003-3; Rocha and Martins (1992), p. 29; and Serrano (2000), p. 38.
- 37.
Given, again, the constitutional principle that extradition can only be granted by a court.
- 38.
See Caeiro (2004), p. 124 f.
- 39.
The decisions of the Executive in extradition and other cooperation proceedings are not easily accessible, which makes it rather difficult to provide a clear-cut picture of the reasons which are brought up by the Minister of Justice when he/she refuses such requests.
- 40.
See Rocha and Martins (1992), p. 24.
- 41.
Cooperation requests issued by the Portuguese State are triggered by the Attorney-General, who informs the Minister of Justice of the necessity to issue a cooperation request, and then it is for the latter to submit the request to the foreign State (see Article 21 (3), and, specifically on extradition, Article 69, and Figueiredo (2015), p. 11 f., thereon). This does not apply to cooperation in the EU, where judicial authorities contact each other directly, even for the execution of a European arrest warrant. Based on Article 165 LICCM, the Minister of Justice may in any case delegate in the Attorney-General the competence to request extradition or the enforcement of a Portuguese sentence in a foreign State.
- 42.
Article 21 (3) and (4), and, with regard to extradition, Article 69 (1) LICCM.
- 43.
Articles 268 and 269 CCP.
- 44.
Articles 399 and 400 CCP.
- 45.
Article 16 (4) (b) LICCM.
- 46.
Article 17 (2) LICCM. Similar rules apply to the case where the person consents to being extradited: see Article 40 (1) and (2) LICCM, and, in legal literature, Veiga (2012), p. 600 f.
- 47.
See Caeiro and Costa (2012), pp. 551 f. In the Portuguese extradition system, a person can be arrested: (i) if his/her extradition has been requested and the judge who is competent for deciding whether the request is prima facie viable (note that this is not an evidentiary requirement akin to the ‘prima facie case’ typical of Anglo-American systems of extradition, but only an ascertainment as to whether or not the extradition request contains ‘sufficient elements’ to be decided by the court) decides that it ought to proceed to the hearing phase (Articles 51 and 52 LICCM). (ii) Arrest is also possible in the urgent cases mentioned in the text (Article 38 LICCM). (iii) On the other hand, according to Article 39 LICCM, even before any sort of request has been made, the criminal police can arrest persons that, according to official information (e.g., provided by Interpol) are sought by foreign authorities for a crime which notoriously justifies extradition. This ‘provisional unrequested arrest’ was ruled not to be unconstitutional by the Constitutional Court in ruling no. 228/97, of 12 March (in www.tribunalconstitucional.pt, as all other rulings of the Constitutional Court mentioned in this article), on the corresponding Arts 38, 65 and 66 of Decree-Law no 43/91 of 23 January (which preceded the LICCM). (iv) A person can also be arrested when a European arrest warrant has been duly issued (Article 16 (5) PT-EAW), and the arrest shall comply with the provisions of the CCP on arrest (Article 16 (6) PT-EAW).
- 48.
Articles 53 (1) and (3) LICCM; on the several forms of arrest / detention and the issues they raise, see Souza and Oliveira (2015), pp. 115 f.
- 49.
Articles 38 (6) and 41 LICCM.
- 50.
Articles 49 (3) and 67 (4) LICCM. Only the targeted individual and the PPO can appeal a final decision on a request for cooperation: see notably Article 58 LICCM.
- 51.
Article 146 (1) LICCM.
- 52.
Articles 399 and 400 CCP.
- 53.
- 54.
See Costa (2019a), pp. 299 f.
- 55.
See supra Sect. 8.1.
- 56.
See e.g. Articles 38 (2) and 145 (1) LICCM.
- 57.
Some examples, in the context of mutual legal assistance: (i) Article 145 (3) and (5) LICCM prescribe that the interrogation of a suspect may be carried out by the foreign State itself, whether through video-link or in presence. (ii) More generally, foreign authorities may be authorised to enter Portuguese territory to carry out procedural acts, and the creation of joint investigation teams is possible (see Articles 145 (5) and 145-A LICCM). (iii) Controlled deliveries are also admitted, based on Article 160-A LICCM, which brings the Portuguese cooperation system into conformity with the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, the 1997 Convention on Mutual Assistance and Cooperation Between Customs Administrations and the 2000 Convention on Mutual Assistance in Criminal Matters between the Member States of the EU. On a case-by-case basis, the PPO can authorise the criminal police to refrain from any action within the context of cross-border criminal investigations, in order to establish, in cooperation with one or more foreign states, the identity and criminal responsibility of the greatest possible number of perpetrators of an offence. This measure can apply to the investigation of any offence which could give rise to extradition, with respect to any kind of goods or money. The right to act and the direction of criminal operations remain in the hand of Portuguese authorities. Operational assistance by foreign (judicial and police) authorities may however be authorised by the Minister of Justice. (iv) On the other hand, while these measures are generally carried out in application of Portuguese law (locus regit actum), they may be carried out in compliance with the legislation of the requesting State (forum regit actum), so that it holds valid in the criminal procedure running its course in that State (Article 146 (2) LICCM).
- 58.
Articles 145 (5) LICCM, and 160-A.
- 59.
Articles 146 (2) and (3) LICCM, and 160-A.
- 60.
Article 42 (2).
- 61.
Although the powers of the Executive in cooperation matters are inherently discretionary, some authors submit that a decision of the Minister of Justice declaring extradition admissible—in spite of political or administrative reasons being met that would manifestly justify refusing the request—can be challenged before an administrative court: see Article 24 (2), a contrario, and Costa (2014), pp. 23 f.
- 62.
Caeiro (1998), pp. 157 f.
- 63.
Art. 46 (3), in fine, LICCM. See Correia (1963), p. 187.
- 64.
On the standards applicable to each of these normative sources, see further infra Sect. 8.3.1.1.
- 65.
Article 8 of the Constitution.
- 66.
Nevertheless, at least insofar as concerns the courts, the criteria based on which such optional decisions are to be taken should be identified pursuant to the normal process of interpretation of the law (see Articles 9 and 10 of the Civil Code), in such a way that, ultimately, the merits of the decision can be challenged, if the decision is open to appeal, which is often the case (see Articles 49 (3), 67 (4), 83 (8), 91 (5), 100 (7) LICCM).
- 67.
See Article 18 (1) LICCM; thereon, Costa (2014). Article 18 (2) LICCM also entitles Portuguese authorities to refuse extradition where it may carry severe consequences for the person, considering his/her age, health condition or other personal factors, and the law explicitly conceives this ground for refusal as ‘optional’. However, the situations at issue here are arguably incompatible with a discretionary decision, as it is impossible to admit discretion with regard to such paramount values as life and health. Thus, if there is a demonstrated risk that extradition may entail the death of the person, it is impossible to choose between refusing extradition (due to that risk) and granting it (in spite of that risk): in both cases refusal should be mandatory. In this sense, this ground for refusal simply requires the ascertainment of whether or not one such risk is met in the case. The circumstance that the criteria for assessing the situation may be looser does not turn this decision into a discretionary one (see ibid., pp. 108 f.).
- 68.
Unless it is shown that the State with territorial jurisdiction is not taking penal action on the acts at issue: Article 33 LICCM.
- 69.
Article 31 (2) LICCM.
- 70.
Article 8 LICCM.
- 71.
Article 31 (1) LICCM.
- 72.
- 73.
See Costa (2019a), pp. 529, 564 f.
- 74.
Article 6 (a) to (c) LICCM.
- 75.
See further infra Sect. 8.3.1.1.
- 76.
Andrade (1992), p. 63.
- 77.
Article 33 (8) of the Constitution.
- 78.
In more detail, see Caeiro and Costa (2012), pp. 573 f., et passim.
- 79.
Article 126 (1) of the CCP.
- 80.
Article 126 (2) of the CCP.
- 81.
Article 126 (3) of the CCP.
- 82.
- 83.
See Articles 171 f. CCP.
- 84.
Article 122 (1) CCP.
- 85.
Ruling no. 198/2004, of 24 March.
- 86.
- 87.
See e.g. the ruling of the Constitutional Court no. 213/94, of 2 March, and the rulings of the Supreme Court of Justice of 31 January 2008, process 4805/07 (in www.dgsi.pt, as all other rulings of judicial courts mentioned in this article), and of 20 February 2008, process 226/08. Sousa (2006), pp. 729 f. summarises this drift away from the theory of the ‘fruits of the poisonous tree’ as follows: (i) ‘independent source exception’, which deems admissible evidence that has or could have been obtained through alternative, autonomous and lawful means; (ii) ‘inevitable discovery exception’, which deems admissible evidence that would have necessarily been discovered at a later stage, in result of another investigation; and (iii) ‘purged taint exception’, which deems admissible evidence that is sufficiently autonomous in relation to the (illegally or improperly obtained) evidence from which it derived (namely the ulterior confession of the offender).
- 88.
Article 125 CCP.
- 89.
Article 34 (2) Constitution. See further infra Sect. 8.6.
- 90.
- 91.
See Costa (2014), p. 41.
- 92.
See further below.
- 93.
Article 118 (3) LICCM.
- 94.
Article 61 (1) (g) CCP.
- 95.
Article 219 (1) Constitution, and the ruling of the Constitutional Court no. 395/2004, of 2 June.
- 96.
One problem is the event that, at this procedural moment, the evidence has become impossible to obtain. This, however, is already a different issue.
- 97.
Article 291 (2) CCP.
- 98.
Article 230 (2) CCP.
- 99.
Article 145 (5) LICCM (addressed in a different light supra Sect. 8.2.1.1). The Minister of Justice can delegate this prerogative to the Attorney-General or, if the measure involves exclusively a foreign police authority, to the National Director of the Judiciary Police: Article 145 (9) LICCM.
- 100.
Article 145 (7) LICCM. Note that these requirements may be dispensed if an international agreement binding on Portugal provides otherwise: Article 145 (11) LICCM.
- 101.
Article 146 (1) and (2) LICCM.
- 102.
Article 146 (3) LICCM.
- 103.
Article 19 (2) PT-EAW.
- 104.
See Article 3 (3) FD-EAW, implemented into Article 11 (c) PT-EAW. This provision has no perfect equivalence in its classic counterpart (the LICCM), although it may to an extent be derived from the ground for refusal provided for in Article 18 (2) LICCM (in this sense, Rocha and Martins 1992, p. 53).
- 105.
This ground for optional non-execution was introduced into the FD-EAW by the FD 2009/229, and implemented into Article 12-A PT-EAW. In contrast, the LICCM has no specific ground for refusal on trials in absentia, but only implicitly contemplates this hypothesis under the general ground for refusal on procedural conditions in the requesting State (Article 6 (1) (a) LICCM).
- 106.
- 107.
Article 11 (d) (e) of the original version of the PT-EAW.
- 108.
Caeiro and Fidalgo (2009), pp. 448 f.
- 109.
- 110.
In the case of the European arrest warrant: Article 2 (2) FD-EAW; Article 12 (1) (a) PT-EAW. In the case of the European Investigation Order (EIO), see Article 31, in fine, 45 and 47 Law no. 88/2017, of 21 August, implementing the FD-EIO: see shortly below.
- 111.
See Caeiro et al. (2018), pp. 689 f.
- 112.
Article 45 (4) PT-EIO.
- 113.
Article 45 (2) PT-EIO. However, the position has been defended in Portuguese legal literature that, where fundamental rights are at stake, it is possible to challenge before a Portuguese court the very lawfulness and proportionality (the two main components of the concept of ‘substantive reasons’) of a European investigation order issued by another Member State, as well as to question whether it is based on a ‘sufficient degree of suspicion’: see Ramos (2018), pp. 129 f. The author further submits that the same result may be achieved through Article 10 FD-EIO (Article 21 PT-EIO), according to which the executing authority may deploy an investigative measure other than that provided for in the European investigation order where, inter alia: the investigative measure indicated in the European investigation order does not exist under the law of the executing State; the investigative measure indicated in the European investigation order would not be available in a similar domestic case; or the investigative measure selected by the executing authority would achieve the same result by less intrusive means than the investigative measure indicated in the European investigation order. This is because these hypotheses presuppose a proportionality assessment—whether made beforehand, in abstract terms, by the legislator, or in the case at hand, in concrete terms, by the relevant authority. This understanding is grounded on the provision implementing Article 14 (2), in fine, FD-EIO, as well as on that implementing its Article 11 (1) (f) (see Article 22 (1) (g) PT-EIO), which enables the non-execution of a European investigation order where there are substantial grounds to believe that its execution would be incompatible with the obligations of the executing State under Article 6 of the TEU and of the Charter.
- 114.
- 115.
Article 45 (1) PT-EIO.
- 116.
Article 45 (6) and (7) PT-EIO.
- 117.
Article 45 (5) PT-EIO.
- 118.
Article 45 (3) PT-EIO. On this, see yet further below.
- 119.
See Article 11 (1) (b) PT-EIO.
- 120.
See supra Sect. 8.2.1.3. Regarding the transfer of prisoners, the key legal instrument is Law no. 158/2015, of 17 September (‘PT-TP’), implementing the Framework Decision 2008/909 and the Framework Decision 2008/947: see, in particular, its Articles 9 (5) and 10 (1).
- 121.
It is recalled that, based on this provision, a request for another State to gather evidence is only possible if it is necessary to prove “essential” facts. This limitation applies equally to classic and EU cooperation, but it has been propounded that it is inadequate to an integrated area such as the Area of Freedom, Security and Justice: see Ramos (2018), p. 123.
- 122.
For this purpose, an informal interview was carried out in Lisbon, on the 7th of August of 2019, with Ms. Joana Ferreira, Director of the Portuguese Office for Documentation and Comparative Law (Gabinete de Documentação e Direito Comparado), whom we thank for sharing information and skilled insights with her customary generosity.
- 123.
Article 8 (3) (d) PT-Eurojust (Law no 36/2003 of 22 August 2003, as amended by Law no. 20/2014 of 15 April, implementing Decision 2002/187/JHA setting up Eurojust, as amended by Council Decisions 2003/659/JHA and by 2009/426/JHA, strengthening Eurojust).
- 124.
Article 8 (4) (d).
- 125.
Acordo de Adesão da República Portuguesa à Convenção de Aplicação do Acordo de Schengen.
- 126.
Especially Article 9 et seq.
- 127.
On the scope and limits of this assessment, see supra Sect. 8.2.1.2.
- 128.
Article 8 (1) Constitution.
- 129.
See Caeiro (2010), pp. 228, 355.
- 130.
Article 6 (1) (a) LICCM. There are other national norms which ‘implement’ international law, such as the prohibition to cooperate with States acting on discriminatory motives, or where such motives may worsen the situation of the individual (Article 6 (1) (b) and (c) LICCM). Cooperation must also be refused if the trial in the requested State is to be conducted before an ad hoc court, or, in the event where the request is aimed at enforcement purposes, if the sentence at issue has been proffered by a court of that nature (Article 6 (1) (d) LICCM). Note that ad hoc courts are to be distinguished from courts of special jurisdiction competent for specific classes of offences or offenders. Apart from military courts (which are allowed in times of war), special penal courts are not allowed by the Portuguese Constitution either (see Articles 209 (4) and 213 Constitution). Excluded from the concept of ad hoc courts are also international tribunals, such as those created by UN Security Council resolutions, and the ICC: cooperation with the ICC has been embraced in full by the Portuguese legal system through a constitutional amendment in 2001 (which introduced current Article 7 (7), ‘embodying’ the Rome Statute of the ICC); cooperation with the former tribunals had already been regulated in Law no. 102/2001, of 25 August.
- 131.
See Article 7 (1) Constitution.
- 132.
See Costa (2019a), p. 387.
- 133.
In more detail, see Costa (2017), pp. 200 f.
- 134.
See supra Sect. 8.2.2.3.
- 135.
See the ruling of 4 January 2007, process 06P4707; thereon, Caeiro and Fidalgo (2009), p. 460.
- 136.
Ibid.
- 137.
But recall the argument by Ramos (2018), pp. 129 f., according to which it is possible to challenge before a Portuguese court the very lawfulness or proportionality of a European investigation order issued by another Member State, as well as to question whether it is based on a ‘sufficient degree of suspicion’, where fundamental rights are at stake (e.g. where the issuing Member State is looking for Portugal to obtain self-incriminatory evidence).
- 138.
Article 45 (2) PT-EIO.
- 139.
Ramos (2018), pp. 145 f.
- 140.
Article 19 (3) and (6) PT-EIO.
- 141.
Article 118 f. CCP.
- 142.
Article 399 f., 427 and 432 CCP.
- 143.
Article 437 (2) CCP. Should there be two opposite decisions proffered by High Courts, by High Courts and the Supreme Court, or by the Supreme Court itself, in different cases, on the same legal issue, the Supreme Court can be relied upon to settle the contradiction by adopting one of the conflicting approaches. Something of a presumption becomes thenceforth in place in favour of the adopted stance: the lower courts that wish to depart from such a stance have a legal duty to justify why they do so, and the PPO is obliged to appeal to the Supreme Court from any rulings that do not follow the settled jurisprudence (Arts 445 f. CCP).
- 144.
Article 446 CCP.
- 145.
Article 19 (1) PT-EIO, and Articles 268 and 269 CCP.
- 146.
See Ramos (2018), p. 146, observing that there is case law in both directions and that a uniform interpretation of the law is yet to define itself.
- 147.
Pursuant to Articles 21 (1) and (2), and 48 (1) LICCM.
- 148.
See Article 23 (1) (b) and (f), and Article 44 (1) (b) and (2) (d) and (e).
- 149.
See Article 47 (1) and (4).
- 150.
See Article 54.
- 151.
See Article 55 (1).
- 152.
See Article 56 (2).
- 153.
See Article 56 (1).
- 154.
See Article 55 (3).
- 155.
In the sense that the court would only rule extradition to be admissible if each ground for refusal was proven beyond reasonable doubt not to be met in the case. Of course, the problem does not even arise in relation to the acts that constitute the offence, as the Portuguese extradition system does not allow the court to assess whether they have been committed by the extraditee.
- 156.
- 157.
See Article 99 (2) and 96 (1) (j) LICCM.
- 158.
See Article 99 (3) and (6) LICCM.
- 159.
See Articles 234 f. CCP.
- 160.
See Articles 237 and 240 CCP.
- 161.
See Articles 21 (4), 145 (4) and 152 (1) and (5) LICCM.
- 162.
See Article 152 LICCM, and 232 and 399 CCP.
- 163.
See especially Article 17 (4) PT-EAW.
- 164.
See supra Sects. 8.1.2(ii), and 8.4.1.1; see Ramos (2018), p. 149; see Article 401 (a) CCP, applicable ex vi Article 45 (1) PT-EIO. Victims should arguably also be able to make use of legal remedies, but this seems to be limited to the case where Portugal is the State conducting the criminal procedure and refrains from requesting another Member State to carry out a given investigative measure. It has also been propounded that third parties should be able to as well to make use of those remedies when the execution of a measure affects their fundamental rights (ibid., 150).
- 165.
Article 33 (5) of the Constitution; see infra Sect. 8.5.1.6.
- 166.
Article 6 (2) (a) LICCM.
- 167.
Article 6 (2) (c) LICCM.
- 168.
Article 9 (1) LICCM.
- 169.
In more detail, see infra Sect. 8.5.3.
- 170.
Article 13 (1) lit. (a) states that if “the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant will be carried out only if the legal system of the issuing Member State has provisions for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such penalty or measure” (= Article 5 (2) FD-EAW); and lit. (b) rules that “where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State” (= Article 5 (3) FD-EAW).
- 171.
The literature has pointed out this inconsistency already in 2009—see Caeiro and Fidalgo (2009), p. 450, and again in (2015), pp. 166 f.—, but the Portuguese legislator ignored the issue in the legal reform of 2015 and continued to ignore it in the most recent amendment to PT-EAW, effected by Law no. 115/2019, of 12 September.
- 172.
Some case law of the Portuguese Supreme Court seems to follow this interpretation: in rulings of 10 November, 2011, process 763/11.8YRLSB.S1, and of 23 November 2011, which clarified the former, it ruled that surrender should be granted immediately, even in the absence of guarantees, under the resolutive condition that some acts should be practised by the authorities of the issuing Member State (notifications related to a trial in absentia) and that the penalty to be imposed could not exceed a certain threshold. Remarkably, this ruling took place in a moment where Portuguese law—correctly—required actual guarantees, in line with the deleted Article 5 (1) FD-EAW.
- 173.
CJEU, judgment of 25 July 2018, Case C-220/18 PPU (ML), paras. 90 f.
- 174.
See Caeiro (2020) (forthcoming).
- 175.
- 176.
See Konnova (2018), p. 45.
- 177.
Ruling no. 417/95, of 17 July.
- 178.
Ruling no. 474/95, of 17 August.
- 179.
Let us suppose, e.g., the case where the requesting State breaches the promise to return a foreign national whose extradition was secured, after a conviction has been passed, to the purpose of serving the sentence in the requested country.
- 180.
See supra.
- 181.
Ruling of the Court of Appeal of Lisbon of 14 September 2011, process 3880/03-3.
- 182.
Ruling of the Supreme Court of 27 January 2005, process 3880/03.
- 183.
Ruling of the Supreme Court of 11 January 2012, process 111/11.7YFLSB.
- 184.
- 185.
Tribunal Administrativo de Círculo de Lisboa (a court of 1st instance in administrative matters), process 2929/14.0BELSB.
- 186.
In any event, no ruling could be found granting the extradition of any person form Portugal to India subsequently to the ruling of the Supreme Court of 11 January 2012, mentioned above. Recall moreover the outright refusal to extradite Sikh activist Paramjeet Singh (supra Sect. 8.3.1.1), although it has not been grounded on the erstwhile breach of the specialty rule by India.
- 187.
European Court of Human Rights (ECtHR), judgment of 4 October 2010, Application no. 61498/08 (Al-Saadoon and Mufdhi v. The United Kingdom), paras. 142 f.
- 188.
See the conjugation of Articles 55 (1), 56 (1), 44 and 23 LICCM.
- 189.
See Article 20 LICCM.
- 190.
See Articles 53 (4), 54 (1) and 56 (1) LICCM.
- 191.
The provision further establishes that: (i) Defendants can choose (free of expenses to them) to be assisted by an interpreter other than that who was appointed to them, for the purposes of translating conversations held between them and their attorneys. (ii) Interpreters are obliged to secrecy, both to ‘secrecy of justice’, which protects the contents of the procedure (when applicable), and to ‘professional secrecy’, and, if such an obligation is violated, the statements of the defendant is null and cannot be used as evidence. (iii) Failure to appoint an interpreter or unlawful appointment of an interpreter are also sanctioned with nullity.
- 192.
See Article 92 (6) CCP.
- 193.
See Articles 3 (2), 23 and 99 LICCM, and Article 92 CCP.
- 194.
See Articles 3 (2), 23 and 152 LICCM, and Article 92 CCP.
- 195.
- 196.
Regulated in Article 38 LICCM, applicable in urgent cases where, before submitting the formal request for extradition, the foreign State requests that the person be arrested. See also Article 39, on the provisional unrequested arrest: before any request for provisional arrest or extradition has even been made, the police can arrest an individual who, according to official information (e.g. from Interpol) is sought by foreign authorities for a crime which notoriously justifies extradition. On both provisions, see Souza and Oliveira (2015), pp. 115 f.
- 197.
See Articles 141 (1) and 254 (2) CCP, applicable ex vi Article 38 (2) LICCM.
- 198.
See Article 61 (1) (b) CCP.
- 199.
See the provisions indicated above in this very §.
- 200.
See Article 86 (2) and (3) CCP.
- 201.
See Article 49 (4) LICCM.
- 202.
See Albuquerque (2009), p. 1043.
- 203.
See the rulings of the Court of Appeal of Lisbon of 7 December 2016, and of the Supreme Court of 7 September 2017.
- 204.
See the decision of the Court of Appeal of Lisbon of 24 May 2018 (in https://www.conjur.com.br/dl/extradicao-raul.pdf). On the whole topic, see Canotilho and Brandão (2019); see also Costa (2019b), pp. 786 f.
- 205.
The tort liability of the State is regulated in detail in Law no. 67/2007, of 31 December.
- 206.
Enshrined in Article 27 (5) of the Constitution.
- 207.
Enshrined in Article 32 (2) of the Constitution.
- 208.
See e.g. the ruling no. 185/2010, of 12 May.
- 209.
See supra Sect. 8.6.1.1.
- 210.
This issue does not arise in the context of the enforcement of foreign sentences, since the custody of the person is already held by the State which granted cooperation, and, therefore, this State may simply cease to enforce the sentence.
- 211.
This solution can be reached through the analogical application of Article 16 LICCM, where the rule of specialty is enshrined: the fundamental idea underpinning this rule is that extradition and other forms of cooperation do not enable the requesting State to exert its punitive power over the concerned person without restrictions. Specialty sets a limitation upon the requesting State’s jurisdiction to adjudicate, such that this State may only exercise its jurisdiction to the extent that this is approved of by the State which enabled that exercise to begin with (see Costa 2019a, p. 433). Thus, if a court in this State comes to rule that a decision to grant cooperation was illegal, then this seems to put in crisis the requesting State’s custody of the person or possession of information.
- 212.
See supra Sect. 8.5.3.
- 213.
See again supra Sect. 8.5.3.
- 214.
See Articles 3 (1) and 17 (1) PT-EAW.
- 215.
See Article 3 (2) PT-EAW.
- 216.
See Article 17 (3) PT-EAW.
- 217.
- 218.
See Articles 6, 8 (5), 10, 16 (2), and 19 (2) to (4) of Law no. 158/2015, and Article 92 CCP.
- 219.
See Article 10 (5) of Law no. 158/2015.
- 220.
See Articles 6, 18 (5), 20 (2) and (3), 25 (3) (a), 36 (1) (a) and (d), and 47 PT-EIO, and Article 92 CCP.
- 221.
See Article 6 (1) (d) PT-EIO.
- 222.
See Article 11 (3) PT-EIO.
- 223.
See Article 45 (5) PT-EIO.
- 224.
See Articles 407 (1) and 408 (3) CCP, applicable ex vi Article 34 PT-EAW; recall the provisions indicated supra Sect. 8.6.1.1.
- 225.
See again Article 45 (5) PT-EIO.
- 226.
See Article 24 PT-EAW.
- 227.
For further detail, recall supra., Sect. 8.6.1.1.
- 228.
Law no. 158/2015, of 17 September (implementing Framework Decision 2008/909/JHA, of 27 November 2008, and Framework Decision 2008/947/JHA, also of 27 November 2008) contains no provision on the possibility to appeal a decision by the Portuguese courts to enforce a foreign sentence. However, the general rule in Portuguese criminal procedure is that judicial decisions can be appealed unless otherwise stated in the law (Article 399 CCP), and, although Law no. 158/2015 (unlike, e.g., LICCM and PT-EAW) does not call for the subsidiary application of the CCP, it is clear that the enforcement of any sentence by the Portuguese State, even if in the name of a foreign State, is a penal decision and is, consequently, subject to the general rule of Article 399 CCP.
- 229.
See Article 45 (1) and (4) PT-EIO.
- 230.
See Article 23 (3) and (4) PT-EIO.
- 231.
Article 23 (3) PT-EIO.
- 232.
Article 23 (4) PT-EIO.
- 233.
However, as in classic cooperation, if a person does successfully challenge the issuing of a European arrest warrant or of a request for the enforcement of a foreign sentence before the courts of the requesting State, then this will naturally produce consequences upon the cooperation procedure running in Portugal, to the extent that this translates into a ground for refusing the request, or in the case where the requesting State itself withdraws the request.
- 234.
See further infra Sect. 8.6.2.3.
- 235.
See Costa (2015), pp. 73 f.
- 236.
See Article 15 (1) of the Directive.
- 237.
See § 15.
- 238.
See Articles 6, 8 (5), 10, 16 (2), and 19 (2) to (4) of Law no. 158/2015, and Article 92 CCP.
- 239.
This solution can be reached through an analogical application of Article 7 FD-EAW and of Article 25 of Law no. 158/2015 (concerning the enforcement of foreign sentences), which enshrine the specialty rule. However, then again, this solution seems unable to supersede the respect for the stability of the res judicatae of the Portuguese State, such that, at a certain point, the revocation of the decision to cooperate by the executing Member State will be immaterial in the Portuguese legal system (unless there are grounds for an extraordinary appeal: revision): see Caeiro and Costa (2012), pp. 542, 571 f. and 585.
- 240.
See Article 23 (5) PT-EIO.
- 241.
See Article 23 (6) PT-EIO.
- 242.
See Ramos (2018), p. 153. The FD makes an explicit caveat in Article 14 (7): “Without prejudice to national procedural rules Member States shall ensure that in criminal proceedings in the issuing State the rights of the defence and the fairness of the proceedings are respected when assessing evidence obtained through the European investigation order”. Still, this provision stays a long way from actually entitling the person to the exclusion of the evidence. In fact, PT-EIO did not even echo the caveat made in the FD-EIO, perhaps because the Portuguese legislator considered that other rules in force in the Portuguese procedural system already ensure respect for “the rights of the defence and the fairness of the proceedings”, which poses a clear sign that the Portuguese legislator indeed did not regard this caveat as an exclusionary rule.
- 243.
Recall the outline of these rules supra Sect. 8.2.1.3.
- 244.
Based on a conjugation of Portuguese rules on exclusion of evidence—notably Article 32 (8) Constitution and Article 126 CCP—with the principle of the higher level of protection of fundamental rights and the principle of assimilation (horizontal) or even the principle of mutual recognition: see Ramos (2018), p. 153.
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Costa, M.J., Caeiro, P. (2021). Country Report “Portugal”. In: Böse, M., Bröcker, M., Schneider, A. (eds) Judicial Protection in Transnational Criminal Proceedings. Legal Studies in International, European and Comparative Criminal Law, vol 5. Springer, Cham. https://doi.org/10.1007/978-3-030-55796-6_8
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