Request for the extradition of a citizen of a country in which, in abstract terms, the crimes in question can be subject to the death penalty
Application of a constitutional norm over time
Obtaining assurances of non-imposition
RULING Nº 384/05
13 of July of 2005
Judicial procedure for extradition is directly linked with the personal freedom of the person to be extradited. This is not only because after extradition he may be subject to a prison sentence or incur the penalty to which he has already been sentenced, but also, and as a consequence, because extradition causes his forced departure from the country.
The rule to observe for the application over time of constitutional norms relating to authorisation of extradition should be to consider the terms of the Constitution in force at the date of submission of the extradition request. The constitutional norms adopted subsequently are applicable only if they are more favourable to the person being extradited. Accordingly, the date chosen is that of the extradition request, not the date when the crimes giving rise to the extradition request were committed. If constitutional norms adopted after submission of the extradition request and permitting extradition in circumstances previously prohibited by the Constitution were applied, this would infringe the constitutional principles of legal certainty and due process in criminal law matters.
Portugal agrees to extradite persons charged with crimes for which a sentence of life imprisonment is nominally prescribed, subject to fulfilment of the following conditions, stipulated cumulatively:
i. the requesting State is reciprocally bound by an international convention to accept extradition requests from Portugal (obviously submitted in respect of crimes carrying penalties other than life imprisonment, non-existent in Portugal) for crimes of the same class as those in its extradition request; and
ii. guarantees that life imprisonment will not be imposed are provided. It therefore follows from the constitutional norm that in cases involving extradition for crimes carrying a penalty of life imprisonment, the reciprocity rule, set out in an international convention (moreover, it constitutes the legally commonplace concept of the principle of reciprocity) must always be applied. It suffices to meet the conditions imposed on the requesting State. Furthermore, where the adequacy of guarantees is concerned, they must be binding on the requesting State in international public law. However, the international undertaking of States does not arise solely from the signature of bilateral or multilateral conventions but may also arise from unilateral acts.
The judicial nature of extradition procedure (Article 33.7 of the Constitution) signifies that the adequacy of the guarantee is to be determined by the court with jurisdiction to authorise extradition, not the political or administrative authorities of the requesting State. In this matter the Constitutional Court's action is confined to the aspects whose review bears directly on the constitutional requirements. The Constitutional Court must always bear in mind that its function is not to determine the constitutionality of judicial rulings as such, but only the constitutionality of the prescriptive criteria on which they are founded.
I. The Indian Union had asked the Portuguese Republic, in accordance with the International Convention for the Suppression of Terrorist Bombings (hereinafter referred to as the New York Convention of 1998), to extradite its national Abu Salem Abdul Qayoom Ansari to be tried for several crimes, some of which carried the death penalty and a sentence of life imprisonment as nominally prescribed penalties.
In the opinion of the State Counsel General, the request was admissible because for crimes punishable by a sentence of death (nominally prescribed), Section 34-C of the 1962 Indian Extradition Act required the Indian Union to commute the sentence to life imprisonment, and because the Indian authorities had given adequate guarantees for the crimes liable to life imprisonment (direct commutation or through commutation by law of the death penalty) that the penalty would not be enforced. However, the request was deemed inadmissible with regard to those crimes that were subject to limitation according to Portuguese law, and to those punishable by life imprisonment and which did not fall within the scope of the New York Convention of 1998. The Minister of Justice, relying on this background, pronounced the extradition request admissible by decision of 28 March 2003. The Lisbon Court of Appeal, in a judgment dated 4 February 2004, decided to authorise the extraditable person's extradition to the Indian Union for trial on charges of crimes listed in the application submitted by the prosecution, with the exception of those crimes punishable by death or by life imprisonment. In a subsequent decision of 27 January 2005, the Supreme Court of Justice authorised extradition to the Indian Union for trial on all the charges specified in the prosecution's application. The extraditable person appealed against this decision to the Constitutional Court.
II. As well as determining several procedural questions, the Court held that in the specific matter of the conditions laid down by the Constitution for extradition of foreign nationals for crimes punishable in the requesting State by nominally prescribed sentences of death or life imprisonment, it should only consider whether the interpretation contained in the challenged decision was in keeping with the Constitution. Thus it was required to verify in the present case the conditions placed by its case law on the admissibility of extradition for crimes nominally punishable by death. According to this case law, the Constitution prohibits extradition for crimes for which the death penalty is legally possible in accordance with the criminal law and criminal procedure of the requesting State. It is therefore incompatible with all guarantees which the requesting State might supply to the effect that capital punishment will not be carried out or will be replaced by another penalty, unless the requesting State signifies the legal impossibility of its application. In this context, the interpretation contained in the challenged decision, according to which it would be legally impossible - from the standpoint of a law-based State - for the Indian courts to impose the death sentence on the extraditable person, fulfils the condition placed by the Court's case law on the admissibility of extradition for crimes carrying the death penalty, nominally prescribed. Consequently, the interpretation and application of Article 9.3 of the New York Convention of 1998 do not infringe any constitutional principle or norm, and specifically Article 33.6 of the Constitution.
As for the crimes for which life imprisonment was nominally prescribed, whether directly commuted or through commutation pursuant to Section 34-C of the Indian Extradition Act, the question of determining the appropriate constitutional parameter might be raised. Article 33 had in fact been amended by the 2004 revision, but the purpose of the amendment was simply to clarify the meaning of the expression "under conditions of reciprocity laid down by an international convention" appearing in the earlier version. At all events, the new wording of the Constitution was not considered any more favourable to the extraditable person.
Furthermore, the Court upheld the opinion that extradition for a crime punishable by life imprisonment was not contingent on the fact of it being legally impossible for the courts of the requesting State to impose this penalty. Even if its imposition was legally possible, the provision of a guarantee that the sentence would not be carried out sufficed to allow the granting of extradition. Such a guarantee could not be purely political, but must be valid in international public law (inclusive of diplomatic guarantees) and legally commit the requesting State vis-à-vis the requested State. Besides, once carried into effect (specifically, through commutation of the life prison sentence to a sentence of limited duration by the organ of the requesting State with constitutionally established jurisdiction to commute), the guarantee must be legally binding on the courts of the requested State. In the case in point,, the Supreme Court of Justice, having identified and interpreted the constitutional and statutory arrangements of the Indian Union, had concluded that if the extraditable person was sentenced to life imprisonment, the guarantee offered by the Deputy Prime Minister and the Minister of Home Affairs, in accordance with the constitutional rules governing co-operation and interdependence between the President of the Indian Union and the members of the Government, placed the requesting state under a legal and international obligation to commute the sentence in question to one of imprisonment not exceeding 25 years. This guarantee was binding on the current and the future Presidents and Governments alike.
In conclusion, and regarding the substantive issue, the Constitutional Court did not consider it unconstitutional to interpret the provision made in Article 9.3 of the International Convention for the Suppression of Terrorist Bombings (New York Convention of 1998) in the sense that Portugal was obliged to extradite the appellant to the Indian Union for crimes contemplated in Article 2 thereof and carrying a nominally prescribed death sentence, given that the execution of the sentence was a legal impossibility pursuant to Section 34-C of the Indian Extradition Act. The same could be said of crimes punishable by a nominally prescribed sentence of life imprisonment, given that the obligation to extradite was subject to the rule of reciprocity laid down by an international convention also subscribed to by Portugal, and that the requesting State had offered a legally and internationally binding guarantee that a prison sentence exceeding 25 years would not be imposed.