Fugitive extradition | Portugal’s bar warns agreement might be unconstitutional

The Portuguese Bar Association (OA) has expressed several concerns over the agreement signed between the governments of Portugal and the Macau SAR over the delivery of fleeing fugitives.

In a statement issued Friday, the OA noted that the bilateral agreement signed in Lisbon on May 15 – and already formalized in Macau via its publication in the Official Gazette – has the potential to “violate fundamental and structuring principles of our Constitutional and Criminal Law.”

The expressed concerns are in regards to several articles, including one on retrospective criminality, or “the possibility of an [act] that was not previously considered a crime, but which at the time of the request, it is already possible to justify a request for the extradition of a suspect.”

The OA is also concerned with the “possibility that, by the application of the agreement, the delivery of the suspect may occur even if the crime for which judicial cooperation is sought does not contain the same characteristics as the punishment [for such crime] in Portugal.”

“This allows the delivery of suspects based on investigations or proceedings pending in the Requesting State that relate to facts that might not be considered as a crime in Portugal, thereby violating the principle of criminal legality as expressed [… in] the Portuguese Constitution.”

The OA notes that the agreement thereby “violates fundamental constitutional principles in terms of the application of criminal laws and the restriction of rights, freedoms, and guarantees.”

The Bar Association said it was in contact with both the political and the judicial authorities to take the necessary arrangements to ensure that the agreement abides by the Portuguese Constitution.
Questioned by the Times on the topic, local lawyer Sérgio Almeida Correia said, “the only thing I can say is that there was an exaggerated rush to the negotiations and approval of the agreement between the authorities on both sides.”

This unfortunately meant that “the structuring principles of the two juridical systems were not properly safeguarded,” according to Correia.

“I am pleased that the OA has moved forward with their position, and, at the same time, it’s regretful that the Macau Lawyers Association [AAM] does not take any position at the appropriate time, [nor] take any initiative,” said Correia.

In reply to a direct media enquiry on the day the agreement was initially signed, the president of the AAM, Jorge Neto Valente, argued that the agreement would apply to very few cases and implied it was almost unworthy of discussion.

Although at the time few details were known about the agreement, Neto Valente described the situation as a “false issue” because the number of cases in which the agreement would apply was very small.

Then there is the matter that, “as the Secretary already clarified, Portuguese nationals would never be extradited by Portugal to Macau or somewhere else and, because on these [matters] there is always a need for reciprocity, Macau would never extradite any Macau resident who is not a Portuguese [national] to Portugal.”