TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 360/12

5 of July of 2012

Headnotes:

The norm under which the requesting state in extradition proceedings does not possess the legitimacy to appeal against a judicial decision that affects its rights after the extradited person has already been handed over to its authorities, cannot be criticised on constitutional grounds. Inasmuch as the decision that could not be appealed was not handed down against the requesting state, the norm in question lies outside the scope of the protection offered by the right of access to the courts and does not violate the right to a dual degree of jurisdiction; nor does it breach the principle of effective jurisdictional protection derived from the principle of a state based on the rule of law. The right of a person or entity to appeal against a judicial decision handed down in proceedings in which it did not participate (was not a party to) is not an issue in this situation.

Summary:

The Lisbon Court of Appeal decided to rescind an extradition authorisation after the citizen concerned had already been extradited, on the grounds of a breach of the principle of speciality. This principle says that the state which secures the surrender of an accused or convicted person may not try him/her for prior facts other than those for which the extradition was granted, or impose a penalty or measure on him/her other than those for the purpose of which he/she was extradited, without the extraditing state’s consent.

The Supreme Court of Justice (STJ) confirmed the Court of Appeal’s decision and refused to admit an appeal which the requesting state – the Union of India – sought to bring, on the grounds that the law does not permit such an appeal. The Union of India then brought the present appeal against the STJ Ruling, asking the Constitutional Court to review the constitutionality of Criminal Procedural Code norms that deny the state requesting extradition legitimacy to appeal against a judicial decision that affects its rights. At stake were both the norm that prevents the requesting state from appealing after the extradited person has already been handed over to its authorities, and the norm that denies legitimacy to appeal to a requesting state that had always intervened in the proceedings at the request of the competent judicial authorities, particularly by responding to appeals lodged by other procedural subjects. The Union of India alleged violations of the principles of a state based on the rule of law, interpretation in accordance with the Constitution, the right of access to the courts, effective jurisdictional protection, fair trial, and equality of arms.

Even though the Portuguese legal order does not provide for specific consequences of a breach of the principle of speciality by a state that has requested an extradition, this does not mean that, as the sovereign state to which the request was made, Portugal cannot react to a violation of that principle. In particular, it can do so by political/diplomatic means, invoking the past breach when future extradition requests are made by the same country and making new extraditions more difficult or even denying them altogether, or by asking international jurisdictional instances or internal courts in the violating state to intervene.

The Constitutional Court emphasised that the constitutional right of access to the courts has not been rendered operable to the point that the constitutional norm can be said to give rise to a general right of appeal, with the ensuing duty on the part of the legislator to include a dual degree of jurisdiction as a rule in the law. The Court considered it questionable whether access to the law and effective jurisdictional protection could be invoked as a parameter for gauging the constitutional conformity of the norms in the case before it. The issue was whether an international-law public legal person (a foreign state) can invoke a fundamental right against the Portuguese state, when that right exists specifically to defend the legally protected rights and interests of persons, natural and legal. In the past the Court has held that enjoyment of the right of access to the law and the courts is compatible with the nature of private legal persons. However, the enjoyment of fundamental rights by public legal persons has been controversial in both Portuguese and foreign legal doctrine and jurisprudence. The compatibility of the possession of fundamental rights with the nature of legal persons depends on both the nature of the legal person and the nature of the particular fundamental right. Those rights that can only be conceived of in connection with natural persons (e.g. the right to life) are incompatible in this respect. Albeit a certain fundamental right may be compatible with the nature of a legal person, its applicability in this domain may operate under terms that differ from those regarding natural persons. This question is clearly visible in the case of systems that are the object of a review of their constitutionality as a result of a challenge on constitutional grounds or an appeal for an amparo remedy.

In the past the Court had already accepted that there is nothing to prevent certain defence arguments that are typical of (subjective) fundamental rights from being absorbed by the principle of a state based on the rule of law and by the institutional guarantees that objectively limit legislative discretion. It had also already accepted that a public authority (the president of a public institute) can possess the right to be represented in court as a fundamental procedural right to legal representation; and it had also held that the exercise of penal action by the state (acting via the Public Prosecutors’ Office) is not protected by the fundamental right of access to the courts, which is a fundamental right for use against the state, notwithstanding the fact that one cannot say that public legal persons are always excluded from the scope of the protection provided by the right of access to the courts.

Notwithstanding the fact that the Constitutional Court’s jurisprudence makes quite an extensive contribution to the operationalisation of the scope of the principle that foreigners and stateless persons who find themselves in Portugal or reside here are legally considered to enjoy the same fundamental rights as Portuguese citizens, the Court has not had much cause to consider the enjoyment of such rights by foreign public or private legal persons. Portuguese legal doctrine accepts that foreign (and even international-law) legal persons can enjoy fundamental rights under the same terms as those which the Constitution (CRP) accepts for Portuguese legal persons, and subject to the restrictive conditions imposed by the CRP. However, specifically with regard to foreign legal persons with a public nature, the legal theorists say that these should not be able to enjoy fundamental rights, at least to the extent that this would lead to a contradiction with Portugal’s national sovereignty.

In the present case, the party that invoked the fundamental right of access to the courts was a state – an international-law public legal person. If one considers the legal nature of extradition, one sees that it is based on the solidarity between states in the fight against crime. It is a form of international judicial cooperation between states in the penal field, and one that is particularly important in the light of the general principle of territoriality in the spatial application of the criminal law. It is useful to the state that requests the agent’s extradition because it is able to exercise its ius puniendi, and to the extraditing state because it ceases to have a criminal agent in its territory. However, the role of the requesting state is that of a mere participant and does not allow that state to be qualified as a subject in the proceedings, or even a procedural participant. As a form of judicial cooperation between sovereign states, one of the fundamental pillars of which is reciprocity, extradition excludes any procedure in which the requesting state can procedurally confront the host state in any way. Extradition can only take place on the level of relations between sovereign states – a level that is eminently political and whose main stage is the international legal order; but the level of the relations between the state that grants an extradition request and the person who is to be extradited is that of the requested state’s internal legal order. The requested state does not exercise its ius puniendi; it exercises its power and fulfils its duty as a state to provide judicial assistance in criminal matters. The competence to exercise ius puniendi pertains to the state to which assistance is provided, and this suggests that the format of the proceedings is that the requested state confronts the potential object of the extradition with the objective of fulfilling the requesting state’s request. When it places the positive decision to extradite within the exclusive competence of a judge (a negative decision can be taken beforehand, as part of the administrative process), and when it does so as part of the chapter on fundamental rights, freedoms and guarantees, what the CRP seeks to ensure is the protection of the person whose extradition has been requested in the face of the state, when the latter exercises its power and fulfils its duty to provide judicial assistance in criminal matters. Having said this, the Constitution does not exclude the possibility that the political aspect of extradition may take precedence over the judicial one, in the sense that the government of the requested state can decide not to surrender the person after a court has taken a positive decision to extradite, particularly in the case of a change of circumstances compared to the moment in time when the extradition request was approved administratively.

Despite the fact that, in the Ruling against which the present appeal was brought, the STJ held that the Union of India had violated the principle of speciality and thus decided to rescind the authorisation to extradite the respondent, its decision did not in itself require the Union of India to return the extradited person to Portugal.

Among other international-law principles, Portugal is governed by those of equality between states, and non-interference in other states’ internal affairs.

Cross-references:

Constitutional Court Rulings nos. 539/97 (24-09-1997), 638/98 (4-11-1998), 174/00 (22-03-2000), 365/00 (5-07-2000), 415/01 (3-10-2001), 530/01 (4-12-2001), 120/02 (14-03-2002), and 399/07, (11-07-2007), and more recently, 160/10 (27-04-2010), 216/10 (01-06-2010), and 496/10 (15-12-2010).