General rules of procedure
Transfer of persons
1. Any transfer of persons arrested or sentenced to a sanction involving deprivation of liberty, where that transfer should be executed as a result of a decision taken pursuant to the provisions of this law, shall be carried out by the Ministry of Justice, in agreement, as to the means of transport, the date, the hour and the place of surrender, with the authorities of the foreign State on whose territory the person concerned is, or to whose territory the person concerned should be transferred.
2. Transfer shall be carried out within the shortest possible delay as from the date of the decision ordering it.
3. The provisions of this Article, adapted as appropriate, shall apply to any transfer requested by any international judicial entity.
Extradition from Portugal
Purpose of and grounds for extradition
1. Extradition may be granted only for the purpose either of instituting criminal proceedings or of executing a sanction or measure involving deprivation of liberty, for an offence that the courts of the requesting State have jurisdiction to try.
2. For any such purpose, surrender of a person shall be possible only in respect of offences, including attempted offences, that are punishable under both the Portuguese law and the law of the requesting State by a sanction or measure involving deprivation of liberty for a maximum period of at least one year.
3. If the request for extradition includes several separate offences each of which is punishable under the Portuguese law and the law of the requesting State by deprivation of liberty, but of which one or some do not fulfil the condition mentioned in the preceding paragraph, extradition for the latter offences shall also be possible.
4. Extradition requested for the purpose of executing a sanction or measure involving deprivation of liberty may be granted only if the duration of the sentence that remains to be served is not less than four months.
5. The provisions of the preceding paragraphs, adapted as appropriate, shall apply to co-operation that carries with it the extradition or the surrender of any person to international judicial entities as mentioned in Article 1.2 above.
6. The provisions of this Article establishing limits shall not preclude extradition where conventions, treaties or agreements to which Portugal is a Party establish lower limits.
Cases in which extradition is excluded
1. Extradition shall be excluded in the cases mentioned in Articles 6 to 8 above, as well as in the following cases :
a) where the offence was committed on the Portuguese territory ;
b) where the person claimed is a Portuguese national, without prejudice to the provisions of the following paragraph.
2. The extradition of Portuguese nationals shall however not be excluded where :
extradition of nationals is provided for in a treaty, convention or agreement to which Portugal is a Party, and extradition is sought for offences of terrorism or international organised crime, and
the legal system of the requesting State embodies guarantees of a fair trial.
3. In the circumstances covered by the preceding paragraph, extradition may only take place for purposes of criminal proceedings and provided that the requesting State gives assurances that it will return the extradited person to Portugal for that person to serve in Portugal the sanction or measure eventually imposed on him, once the sentenced is reviewed and confirmed in accordance with the Portuguese law, unless the extradited person expressly refuses to be returned.
4. For the purpose of assessing the guarantees mentioned in sub-paragraph c) of paragraph 2 above, account shall be taken of the European Convention of Human Rights and other relevant international instruments ratified by Portugal, as well as the conditions under which protection is ensured against the situations mentioned in sub-paragraphs b) and c) of paragraph 1 of Article 6.
5. Where extradition is not granted on any of the grounds stated in paragraph 1 above or in sub-paragraphs d), e) or f) of paragraph 1 of Article 6, criminal proceedings shall be instituted for the offence on the grounds of which the request was made; the requesting State shall be asked to provide such information as is necessary. The judge may impose such provisional measures as he deems adequate.
6. The question of whether the person claimed is or is not a Portuguese national shall be examined at the time of the decision on the extradition request.
7. Special arrangements, within the framework of military or other alliances, may provide that offences under military law which are not offences under ordinary criminal law shall be extraditable offences.
Offences committed in a third State
In the case of offences committed on the territory of a State other than the requesting State, extradition may be granted only if under identical circumstances Portugal would have had jurisdiction under Portuguese law, or if the requesting State can prove that the former State does not request the extradition of the person concerned.
1. The requesting State shall not be empowered to re-extradite to a third State a person surrendered to it by way of extradition.
2. The provisions of the preceding paragraph shall have no effect where:authorisation for re-extradition is requested and granted under the same terms as those established for an extradition request, after the person concerned haying been heard, orthe extradited person, having been given the possibility to leave the territory of the requesting State, did not avail himself of that possibility within a period of 45 days or, having left it, voluntarily returned to it.
3. For the purposes of establishing the requirement set out in sub-paragraph a) of paragraph 2 above, a statement of the person concerned relating to his re-extradition may be requested.
4. The provisions of paragraph 1 above shall also have no effect where by virtue of a treaty, convention or international agreement to which Portugal is a Party, the consent of the requested State is not required. Where the person consents to his re-extradition, the provisions of the following paragraph shall apply.
5. Any statements of the person sought produced on account of the provisions of paragraphs 3 or 4 above, shall be taken before the ""Tribunal da Relação"l" (court of appeal) that has jurisdiction over the area where the person resides or is staying. With respect to the provisions of paragraph 4 above, the formalities provided for in Article 17 shall be respected.
1. Neither the fact that criminal proceedings are pending in a Portuguese court against the person claimed, nor the fact that that person is serving a sentence involving deprivation of liberty for an offence other than the offence on the grounds of which extradition is requested, shall prevent extradition from being granted.
2. In such cases, the surrender of the person claimed may be postponed until the proceedings terminate or the sentence is served.
3. The surrender of the person may also be postponed if it is established through medical expertise that that person suffers from an illness that puts his life in danger.
1. Under the circumstances described in paragraph 1 of Article 35, the person claimed may be temporarily surrendered for the purpose of procedural acts, in particular his trial, which the requesting State establishes cannot be postponed without it carrying serious prejudice, if the surrender does not in turn carry prejudice to the proceedings pending in Portugal and if the requesting State undertakes to return unconditionally the person concerned to Portugal once such procedural acts are terminated.
2. Where the person temporarily surrendered was serving a sentence, the enforcement of the latter shall be suspended as from the date of the surrender of the person to the requesting State and until the date of the surrender back of the person to the Portuguese authorities.
3. However, the duration of custody in the requesting State shall be deducted from the period that remains to be served in Portugal where such custody was not taken into consideration in that State.
4. Where surrender was postponed under the provisions of Article 35, for the purpose of the "Tribunal da Relação"l (court of appeal) assessing the requirements mentioned in paragraph 1 above, the request for temporary surrender is processed by way of appending the file to that of the extradition request. The Tribunal da Relação shall seek an opinion both from the court under whose authority the person is, and the Minister of Justice.
Extradition from Portugal
1. The request for extradition must include, other than the elements mentioned in Article 23 :
a) evidence to the effect that, under the concrete circumstances of the case, the person claimed is subject to the criminal jurisdiction of the requesting State ;
b) where applicable, evidence that any third State on whose territory the offence was committed does not claim the person for the same offence ;
c) a formal undertaking to the effect that the person claimed shall neither
(i) be extradited to a third State, nor (ii) be arrested with a view to being proceeded against to serve a sentence or for other purposes, for any offence committed prior to, or concomitantly with, the offence for which extradition is requested.
2. The following must be appended to the request for extradition :
a) the warrant of arrest of the person claimed, issued by the competent authority ;
b) a certificate or an authenticated copy of the decision ordering the issue of the warrant of arrest, in the case of extradition with a view to criminal proceedings ; a certificate or an authenticated copy of the conviction and sentence, in the case of extradition for the purpose of serving a sentence, as well as a statement specifying the duration of the sentence left to be carried out, if that duration does not correspond to the duration stated in the sentence ; a copy of the relevant enactments relating to the conditions under which the person becomes immune by reason of lapse of time from prosecution or punishment, as applicable ; if applicable, a statement by the competent authority concerning any facts that, according to the law of the requesting State, have suspended or interrupted the counting of time ; a copy of the relevant enactments relating to the possibility of an appeal, or to the possibility of a new trial in case of a sentence rendered in absentia.
1. If the request for extradition is either not complete, or not accompanied by all the information that is necessary in order to take a decision, the provisions of paragraph 3 of Article 23 shall apply ; a deadline for the reception of the missing elements shall be fixed, but may be prolonged if the requesting State gives good reasons.
2. If the information requested in accordance with the provisions of the preceding paragraph is not made available, the extradition procedure may be discontinued at the end of the deadline, without prejudice to the possibility of the procedure being re-opened when such information is made available.
3. If the request concerns a person who is already arrested pending an extradition procedure, the discontinuation mentioned in the preceding paragraph entails the immediate release of that person ; the provisions of paragraph 7 of Article 38 shall apply mutatis mutandis.
Nature of the extradition procedure
1. The extradition procedure shall be of an urgent nature and shall consist of two stages, namely the administrative and the judicial stages.
2. The administrative stage of the procedure aims at an assessment of the extradition request by the Minister of Justice for the purpose of deciding on the basis of political reasons, or on discretionary grounds, taking into account the safeguards applicable, whether the request is admissible or not admissible.
3. The judicial stage rests under the exclusive competence of the "Tribunal da Relação"l which, after having heard the person concerned, shall undertake a legal assessment of the form and substance of the facts in relation to the legal requirements, for the purpose of deciding whether extradition shall be granted or not ; no evidence on the alleged conduct of the person claimed shall be taken into consideration.
Extradition from Portugal
Beginning of the judicial procedure
1. Extradition requests that are declared admissible, along with any documents available and the decision taken, shall be forwarded to the public prosecutor attached to the ""Tribunal da Relação"l" that has jurisdiction over the request.
2. The public prosecutor shall, within 48 hours of receiving the file, take such steps as are necessary in order to initiate the judicial procedure.
Introductory decision and arrest of the person claimed
1. Once the case referred to a chamber and within that chamber to a judge rapporteur, the procedure shall immediately be submitted to the latter who, within eight days, must produce a preliminary decision on whether the information available suffices and whether the request is viable.
2. If the judge rapporteur deems that the procedure should be discontinued, he shall submit the file and his written opinion to be examined for a period of five days by the other judges in chamber, the request being submitted to the chamber for decision at its next meeting.
3. If the case should proceed, the warrant of arrest of the person claimed shall be delivered to the public prosecutor who must promote its execution.
4. Should additional information be required, the competent authorities shall be instructed to keep the person claimed under surveillance, unless it is deemed necessary immediately to place that person under arrest on grounds that there are serious reasons for believing that the request will proceed.
Duration of the arrest
1. The arrest of the person claimed shall be terminated and replaced by another coercive measure if the final decision of the ""Tribunal da Relação"l" does not occur within 65 days of the date of the arrest.
2. Should no non-custodial coercive measure be adequate, the period mentioned in the preceding paragraph shall be prolonged for no longer than 25 days; a final decision must be taken within that period of time.
3. Without prejudice to the provisions of Article 40, the arrest shall continue where an appeal is made against the decision of the ""Tribunal da Relação"l" ordering extradition ; however, the period of arrest pending a decision on the appeal may not go beyond a period of 80 days from the date of the appeal.
4. Where a request for review is submitted to the Constitutional Court, the period of arrest pending a decision on the review may not go beyond a period of three months from the date of the request.
Appearance of the person claimed
1. The authority that proceeds to the arrest of the person claimed shall, through the most expedite means that afford evidence in writing, immediately inform the public prosecutor attached to the ""Tribunal da Relação"l" that has jurisdiction over the request.
2. Within 48 hours of his arrest, the person claimed must appear before the public prosecutor for the purpose of being heard ; any property seized shall accompany the person.
3. The judge rapporteur shall hear the person after having appointed a legal counsel for that person if the latter has not done it himself.
4. The person shall be personally summoned to the hearing and informed of his right to be assisted by both a legal counsel and an interpreter.
5. Where for one reason or another the arrest cannot be examined by the ""Tribunal da Relação"l", the person must appear before public prosecutor attached to the court of first instance that has jurisdiction over the area of the seat of the ""Tribunal da Relação"l" that has jurisdiction over the request.
6. In the case mentioned in the preceding paragraph, the hearing shall have as its sole purpose for the judge of the court of first instance to examine whether the arrest was legal and whether it may continue; the public prosecutor shall take whatever measures are necessary in order to ensure that the person appears in the first working day that follows.
Hearing of the person claimed
1. In the presence of the public prosecutor and the legal counsel of the person claimed, and if necessary with the assistance of an interpreter, the judge rapporteur shall proceed to the identification of the person and shall inform him of his right to object to his extradition, of his right to consent to his extradition, of the possibility opened to him to relinquish the benefits of the rule of speciality in accordance with the applicable treaty law.
2. If the person claimed declares that he consents to being surrendered to the requesting State, the provisions of paragraphs 2 to 5 of Article 40 shall apply mutatis mutandis. If the person claimed declares that he objects to his extradition, the judge shall assess the reasons for the objection, should the person wish to state such reasons, and produce a written record of the hearing.
3. If the possibility is opened to the person claimed to relinquish the benefits of the rule of speciality, as mentioned in paragraph 1 above, a verbatim account of the information provided on the rule of speciality shall be written into the record of the hearing, along with the statements of the person; the provisions of paragraphs 2 to 5 of Article 40 shall apply mutatis mutandis.
4. The information mentioned in the preceding paragraph shall also be written into the record of the hearing, if under the applicable treaty law it is still possible for the person, after his surrender, to relinquish the benefits of the rule of speciality before the authorities of the requesting State.
5. Both the public prosecutor and the legal counsel may suggest questions for the judge, if he deems the questions appropriate, to put to the person.
6. The provisions of paragraphs 3 and 4 shall also apply to re-extradition.
Objections of the person claimed
1. After the hearing of the person claimed, the file shall be entrusted to his legal counsel who may, within eight days, present in writing the person's objections to the extradition request, along with the reasons for the objections, and indicate ways and means of evidence compatible with the Portuguese law ; the number of witnesses, however, cannot be in excess of 10.Only the following grounds for objection shall be admitted: the person detained claims not to be the person claimed, or the person detained claims that one or more requirements for extradition have not been met.
3. Once the objections are put forward in writing, or once the time-limit for that procedure has expired, the file shall be submitted f or a period of no longer than five days to the public prosecutor; the latter may put forward requests as he deems fit, subject to the limit on the number of witnesses as indicated in paragraph 1 above.
4. If property is seized, both the person claimed and the public prosecutor may put forward their views on the matter.
5. The ways and means of producing evidence that were indicated by the parties may, not later than the day before their being produced, be replaced by other ways and means, if such replacement does not entail any adjournment.
Producing of evidence
1. Any steps requested or taken at the initiative of the judge, in particular steps taken in order to decide on the property seized, must be done within 15 days, in the presence of the person concerned, his counsel, an interpreter if necessary and the public prosecutor.
2. After the production of evidence, the public prosecutor and the counsel may each hold the file for a period of no longer than five days. They may produce submissions.
1. Where the person concerned has not objected in writing, or after the submissions have been produced in conformity with the provisions of paragraph 2 of Article 56, the judge shall have a period of ten days to examine the file and shall then forward it to each of the other two judges in chamber, for their examination, for a period of five days.
2. The file shall then be submitted to the next session of the chamber, with priority over other matters pending, for final decision ; the final decision shall be taken according to the provisions of ordinary criminal procedure.
1. Both the public prosecutor and the person concerned shall enjoy the right to make an appeal within ten days of the decision.
2. The request for the appeal shall include submissions or otherwise the appeal shall be dismissed.
3. The other party shall have ten days to reply to the appeal.
4. The file shall be forwarded to the "Supremo Tribunal de Justiça" as soon as that reply is received or as soon as the ten days' time-limit is over.
Decision on the appeal
1. Once the file is referred to one of the chambers of the criminal section of the "Supremo Tribunal de Justiça", the judge rapporteur shall have a period of ten days to prepare a draft decision. The file shall then be forwarded simultaneously to all the other judges in chamber, for eight days.
2. As soon as the file has been examined by all the judges, it shall be submitted to the next session of the chamber, with priority over other matters pending; not more than three days after the decision on the appeal becomes final, the file shall be returned to the ""Tribunal da Relação"l".
Surrender of the person
1. A certificate of the final decision ordering the extradition shall be required and shall be the only document required in order to surrender the person claimed.
2. Once the decision to extradite becomes final, the public prosecutor shall transmit that decision to the Ministry of Justice for the purposes stated in Article 27, and inform the Attorney-General's Office; the date of the surrender shall not be fixed later than 20 days after the date in which the decision to extradite became final.
Time-limit for the surrender
1. The person concerned shall be removed from the Portuguese territory at the date that is fixed in accordance with the provisions of Article 60.
2. Should no-one show up to receive the person at that date, he shall be set free 20 days after that date.
3. That time-limit may be extended for another 20 days, inasmuch as the particular circumstances of the case so require, if reasons of force majeur, notably illness as described in paragraph 3 of Article 35 prevent surrender within that time-limit.
4. Any new request for the extradition of a person whose surrender did not take place within the time-limit mentioned in paragraph 2 above, or within any extension of that time-limit, may or may not be examined.
5. Once the person is surrendered, both the court and the Attorney-General' Office shall be informed.
Special procedural rules for cases of provisional arrest
1. The judge mentioned in Article 51 above shall be empowered to order the provisional arrest; he shall not produce such an order unless he is satisfied with the authenticity, the regularity and the admissibility of the request; the warrant of arrest shall be handed over to the public prosecutor.
2. The authority who arrests the person shall bring him before the public prosecutor attached to the ""Tribunal da Relação"l" that has jurisdiction over the request, for the purposes of the person being heard and of a decision being taken to the effect of ratifying or not the arrest and allowing or not its continuation ; such a decision must be taken within a period of no more than 48 hours after the arrest.
3. The Attorney-General's Office shall be immediately informed of any provisional arrest ; where provisional arrest should terminate according to the provisions of paragraph 5 of Article 38, an order for the release of the person shall be given.
4. The provisions of paragraphs 5 and 6 of Article 53 shall apply mutatis mutandis.
1. Once the extradition request of a person provisionally arrested is received, the procedure provided for in Article 48 shall be completed within 15 days.
2. If the Minister of Justice deems the request to be admissible, it shall immediately be forwarded, via the Attorney-General, to the public prosecutor.3. The arrest of the person shall terminate and be replaced by another coercive measure if the request is not submitted to court within 60 days of the date of the arrest.
4. The file shall immediately be referred to one of the chambers in the ""Tribunal da Relação"l"; the time-limits mentioned in paragraphs 1 and 2 of Article 51 shall be reduced to three days; the time-limit mentioned in paragraph 1 of Article 52 shall run as from the date of receipt of the request by the court.
5. Any decision by the Minister of Justice to the effect of refusing the request shall immediately be transmitted in accordance with the provisions of paragraph 2 above, for the purpose of releasing the arrested person.
Non requested provisional arrest
1. Any authority who proceeds to an arrest according to the provisions of Article 39, shall bring the person before the public prosecutor of the ""Tribunal da Relação"l" situated in the district where the person was arrested ; the public prosecutor shall take steps for the hearing of the person, in accordance with paragraph 2 of Article 62.
2. If the arrest is upheld, it shall immediately be brought to the attention of both the Attorney-General's Office and, through the quickest channels, the foreign authority concerned; the latter shall be requested to inform urgently whether it will submit an extradition request ; it shall also be requested to conform with the time-limits provided in paragraph 5 of Article 38.
3 The arrest shall be terminated after 18 days unless a reply is received to the question mentioned in the preceding paragraph, and it shall be terminated after 40 days if a positive reply is received but not followed by an extradition request.
4. The provisions of paragraphs 5 and 6 of Article 53 and those of Article 63 shall apply mutatis mutandis.
Non-custodial coercive measures
The ""Tribunal da Relação"l" shall be competent to decide upon any non-custodial coercive measures where such measures may apply under the provisions of Articles 38 and 64.
Second surrender of a previously extradited person
Arrest of the extradited person following his escape
1. The warrant of arrest mentioned in Article 42 shall be forwarded to the Central Authority. through the channels mentioned in this law, and shall contain or be accompanied by such information as is necessary in order to establish that the person concerned has previously been extradited from Portugal and has since escaped, before the end of the criminal proceedings against him, or before having served the sentence assigned to him.
2. The warrant of arrest shall be forwarded to the public prosecutor attached to the '"Tribunal da Relação"l" which dealt with the extradition procedure ; the public prosecutor shall provide for the implemetation of the request.
Implementation of the request
1. Once the implementation of the request has been requested, the judge, if he is satisfied that the request is regular and that the person in question is the same person that was previously extradited, shall make an order for implementation of the request.
2. Within eight days from the date of the arrest, the person concerned may object in writing to his being surrendered to the requesting State, on grounds that the requesting State violated the conditions under which extradition had been granted, indicating the nature of his evidence; the number of witnesses offered to substantiate his claim cannot exceed five.
3. If there is objection, the provisions of paragraphs 3 and 5 of Article 55 and the provisions of Articles 56 and 57, shall apply mutatis mutandis.
4. Any appeal against the decision on the request shall be dealt with according to the provisions of Articles 58 and 59.
Second surrender of a previously extradited person
1. In accordance with the provisions of Article 60, the public prosecutor shall take such measures as are necessary in order to ensure the second surrender of the previously extradited person, where there has been no objection or as soon as the objections have been set aside, as applicable.
2. The warrant of arrest as executed shall replace the certificate mentioned in Article 60.
1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.
2. Where the person sought for surrender brings a challenge before a national court on the basis of the principle of ne bis in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility.
(a) A State Party shall authorize, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the Court by another State, except where transit through that State would impede or delay the surrender.
(b) A request by the Court for transit shall be transmitted in accordance with article 87. The request for transit shall contain:
(i) A description of the person being transported;
(ii) A brief statement of the facts of the case and their legal characterization; and
(iii) The warrant for arrest and surrender;
(c) A person being transported shall be detained in custody during the period of transit;
(d) No authorization is required if the person is transported by air and no landing is scheduled on the territory of the transit State;
(e) If an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court as provided for in subparagraph (b). The transit State shall detain the person being transported until the request for transit is received and the transit is effected, provided that detention for purposes of this subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received within that time.
4. If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.