The prohibition on and conditions governing the admissibility of extradition for crimes that are punishable under the law of the receiving state by a penalty or security measure that entails deprivation of liberty in perpetuity or for an indefinite period
Constitutional regime governing rights, freedoms and guarantees
Right to life
Current law in the Territory of Macao
RULING Nº 417/95
4 of July of 1995
Under the Portuguese Constitution, no one may be extradited for crimes which carry the death penalty «under the law of the requesting State». This prohibition stems from the absolute protection afforded to the right to life. The petition of the requesting State must be reviewed in the light of the Constitution and the nature of the offence and penalty, from both the substantive and procedural points of view, under the domestic legal systems of the two States concerned by the extradition. Consequently, any case in which Portugal may cooperate in an extradition for the purposes of applying and executing a penalty - the death penalty - which could not be imposed under any circumstances or for any type of crime upon any person in Portugal, whether citizen or foreigner, is automatically unconstitutional.
The words in the Constitution «under the law of the requesting State» refer to the domestic law in force in the latter State, composed solely of its code of penal norms, including the possibility of the death penalty in the abstract, and the mechanisms - and only those mechanisms - that belong imperatively to criminal law and procedure, from which it should follow that the death penalty will never be executed in reality because it can never be applied.
The applicant, arrested in Macao (which is a territory under Portuguese administration subject to a special status but in which the norms of the Portuguese Constitution relating to fundamental rights are directly applicable), was sought by the police authorities of the People's Republic of China for the intentional homicide of his fiancée. The Macao High Court of Justice granted the extradition request, considering, in short, that the People's Republic of China had committed itself, through the promises of its Ministry of State Security, forwarded by the Xinhua press agency - which has quasi-diplomatic functions in Macao - not to sentence the suspect to death or life imprisonment or to extradite him to a third country. According to the Macao Court, these promises became obligations of an international legal nature and had force of law in the People's Republic of China.
In its final decision, the Constitutional Court ruled that the legal norm in question was unconstitutional (violation of Article 33.3 of the Constitution), in that it allowed extradition for crimes punishable by the death penalty under the law of the requesting State, the guarantees given for its commutation notwithstanding. In the Court's view, the guarantee provided by the requesting State was above all of a political and diplomatic character and, although obligatory from the international viewpoint, was not binding on the Chinese courts.
A number of procedural questions concerning the admissibility of this appeal were treated in decision no. 481/94 of 12.07.1994.
This case aroused public interest in Portugal, Macao and Hong Kong (and also in the British embassy in Lisbon, because the refugee was in possession of a British passport). Given the nature of the question, the judgment took place in plenary. Two judges expressed a dissenting opinion.
In decision no. 474/95 of 17.09.1995, following the same case law, the Court also ruled unconstitutional the provision that failed to prohibit extradition in cases in which the application of a penalty of life imprisonment is legally possible even if its application is unlikely because of guarantees given (in the specific case, the American embassy had requested the extradition of a Brazilian citizen to be judged for trafficking in cocaine between Brazil and the United States).