The unconstitutionality of a legal norm which was in effect in the Territory of Macao and which permitted extradition for crimes that could result in the death penalty in the receiving state
Special status of Macao
Right to life
European Convention on Human Rights
RULING Nº 1146/96
12 of November of 1996
The substantive unconstitutionality of a norm concerning extradition must be assessed in the light of the constitutional text in force at the time when the norm is applied. In fact the Portuguese Constitution prohibits extradition where the crime may incur the death penalty under the law of the requesting State.
Because it prohibits extradition for crimes legally punishable by death according to the criminal law and procedure of the requesting State, the Constitution is incompatible with any guarantee given by the requesting State that it will commute or refrain from executing the death penalty.
In Portugal, the absolute prohibition of extradition for crimes carrying the death penalty dates from the 1976 Constitution.
Macao is a Portuguese-administered Asian territory subject to a special status, where the provisions of the Portuguese Constitution relating to fundamental rights are directly applicable and where a number of legal norms approved by the Portuguese legislative bodies both before and after the 1976 Constitution are in force. Thus the ordinary statute (amended in Portugal by the new legislation on mutual assistance in criminal law matters) permitting extradition for crimes punishable by death or life imprisonment where the requesting State guaranteed commutation was still in force in Macao.
This norm was nevertheless held unconstitutional by the Constitutional Court in appeals lodged against three decisions of the Macao High Court of Justice, all approving the extradition requested by the People's Republic of China.
The judgment in question derives from an abstract review of constitutionality actuated by two appeals which were joined, one brought by a group of Members of the Assembly of the Republic and the other by the Attorney-General's Office (the latter being founded on the reiteration of similar judgments).
After resolving the question of the appellants' locus standi the Court, on the merits, reiterated its case law and declared the norm at issue unconstitutional with universal binding effect.
The provision relating to extradition is Article 33.3 of the Constitution, of which stipulates that no-one shall be extradited for crimes which carry the death penalty under the law of the requesting State.
Abstract constitutional review of a norm, once it has been ruled unconstitutional in three specific cases (repeated similar judgments), is provided for in Article 281.3 of the Constitution and Article 82 of the Law on the Organisation, Operation and Procedure of the Constitutional Court.