Ciminal Procedural Law – extradition
Restrictions on fundamental rights;
Natural judge principle
RULING No. 596/15
18 of November of 2015
The Constitutional Court found no unconstitutionality in a norm in the Extradition Convention between the Member States of the Community of Portuguese-Speaking Countries, when interpreted such that for the purpose of the timely delivery and submission by the requesting state of a formal request for passive extradition to face criminal proceedings to the competent court of the requested state, during the judicial phase it is enough to present the order confirming admissibility issued by the Ministry of Justice, without any other official document or diplomatic note from the requesting state. Nor did the Court detect any constitutional flaw in a norm in the Law governing the Organisation of the Judiciary System, regarding the composition of courts during court vacations, when interpreted to mean that it is not obligatory for the original rapporteur to be a member of the conference that hears a passive extradition request when the hearing takes place during vacation.
The Court considered that the norm is not in breach of the Portuguese constitutional-law principle of the ‘natural judge’ or ‘legal judge’, which is intended to ensure that no case is ever judged by an ad hoc court set up for the purpose, or by any court other than the one that was competent on the date of the crime, with that competence decided by the application of the organic and procedural norms containing rules designed to use objective criteria to determine the court that must intervene in each case; nor did the Court consider there is any violation of the same principle as included in the European Convention on Human Rights The content of this principle does not signify that the judge to whom a given case was distributed necessarily has to intervene in the respective trial. What is essential is that the competent judge be determined on the basis of rules set out in either legislation or other appropriate rules which decide the concrete composition of the judicial body that is going to try a case.
The appellant in this concrete review case was an Italian national awaiting extradition to Brazil. The appeal was against a Ruling of the Supreme Court of Justice (STJ) confirming a decision of the Lisbon Court of Appeal (TRL) to grant the Brazilian extradition request and authorise the extradition itself.
The Constitutional Court entirely refuted the appellant’s argument that the decision to extradite was in violation of the concept of public order upheld by the Portuguese State, inasmuch as the vision underlying the Portuguese legal system is one in which the key goal of criminal sentences is not just to punish the offender by imprisoning him/her, but also to reintegrate him/her into society – a principle which the appellant alleged the Brazilian penal process does not respect. The Court recalled that it is only competent to address questions which require it to determine whether or not given legal norms or normative interpretations are in conformity with the Constitution; it does not control alleged situations of unconstitutionality directly derived from judicial decisions themselves.
In the Portuguese constitutional-law system there is no such thing as an ‘amparo remedy’ or ‘constitutional complaint’ designed to investigate the possibility that an act or decision – particularly by a jurisdictional authority – has directly violated fundamental rights to which the Constitution affords its protection.
Because the requesting state in this extradition was Brazil, the TRL considered that the Extradition Convention between the Member States of the Community of Portuguese-Speaking Countries (CEEM-CPLP) was applicable, and that if the Convention was insufficient in any respect, the subsidiary authority would be the Law governing International Judiciary Cooperation in Penal Matters. The latter expressly states that the forms of cooperation it covers (which include extradition) are governed: by the norms contained in the international treaties, conventions and agreements that are binding on the Portuguese State; if these are lacking or insufficient, by its own provisions; and subsidiarily, by the provisions of the Code of Criminal Proceedings (CPP). The Convention says that extradition requests must be transmitted by the central authority of the requesting state to that of the requested state, without prejudice to the possibility of using diplomatic channels to that end. Portugal indicated that its central authority for this purpose is the Attorney General’s Office (PGR).
The appellant argued before the TRL that the requesting authority’s formal extradition request should have reached that court by 26 June 2015, but that the PGR communication containing the request was drawn up on 30 June 2015 and received by the TRL on 2 July 2015. The TRL held that the actual request admitted by the Minister of Justice reached it on 25 June 2015 – i.e. within the time limit – and was then complemented by additional documentation at a later time. The STJ concluded that there had been no breach of any constitutional or ordinary-law precepts, and that the judicial request for extradition had been submitted in a timely manner.
The Constitutional Court noted that the extradition process includes an administrative phase and a judicial one. In the present case the Minister of Justice reviewed the extradition request, considered it to be admissible, and sent it to the representative of the Public Prosecutors’ Office at the TRL.
The Court rejected the appellant’s argument that there had been a violation of constitutional norms regarding the integration of General International-Law norms and principles into Portuguese Law and the automatic incorporation of the norms included in duly ratified or approved international agreements. The fact that a party disagrees with the way in which a jurisdictional instance interprets convention norms does not mean that those norms are not applicable in the Portuguese legal system, and the Court found no evidence of any breach of the applicable constitutional precepts in this respect. On the alleged violation of the direct applicability, subject to certain preconditions, of the constitutional norms that enshrine rights, freedoms and guarantees, the Court said that this requirement imposes a duty on courts to review the constitutionality of laws and to refuse to apply a legal norm if they conclude that it is not in conformity with the Constitution. In this regard, and given that the applicant did not invoke any other constitutional parameters he believed to have been breached, the Court was unable to find any unconstitutionality in this respect.
The TRL only decided whether the extradition request was submitted in a timely manner; it did not address the legitimacy to make the request in the first place. This position did not conflict with either the constitutional parameters invoked by the appellant, or any other constitutionally protected right pertaining to persons who are the object of extradition proceedings. The appellant was guaranteed the ability to access all the information needed to oppose the extradition request, the opportunity to be heard by the court, and then the possibility of actually opposing the request as part of the same proceedings. He was specifically able to challenge both the grounds for the request and its format and the way in which it was processed – an ability of which he took advantage.
Both Portuguese legal doctrine and the Constitutional Court’s own jurisprudence indicate that the ‘natural judge’ principle cannot prohibit changes in the law governing the organisation of the judiciary (including the competence to hear given cases), or the possibility of their immediate implementation, even if this means that specific cases may be heard by a court other than the one that would have been competent at the time when the fact in question occurred.
Such changes in legal rules or the procedural rules governing the way cases are divided up between courts and/or judges can even be valid for pending cases. The point is that a new regime must be valid in general, encompassing an indeterminate number of future cases, and cannot be based on arbitrary reasons which permit the conclusion that the resulting judiciary composition was formed on in an ad hoc way.
The important thing when it comes to respecting the natural judge principle is that the judge(s) who is(are) to intervene in a given procedural act must be determined on the basis of rules set out in legislation, or other rules that decide who is going to hear a case, in such a way as to avoid any arbitrariness or discretionary choices when a specific case is attributed to one or more specific judges. This requirement is met by the rules on the choice of judges during court vacations.
For all these reasons, the Court denied the appeal.
Rulings nos. 193/97 (11-03-1997); 614/03 (12-12-2003); 162/09 (25-03-2009); 7/12 (11-01-2012); 21/12 (12-01-2012); and 482/14 (25-06-2014).