Part II
Extradition

CHAPTER I
Extradition from Portugal

Section I
Requirements


Article 35
Postponed surrender

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.


Article 36
Temporary surrender

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" (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.

Part IV
Enforcement of criminal judgements

CHAPTER I
Enforcement of foreign criminal judgements


Article 96
Specific requirements

2. Without prejudice to the provisions of the preceding paragraph, a foreign judgement may also be enforced in Portugal if the person concerned is already serving in Portugal a sentence for any offence other than the offence for which the foreign judgement was passed.

Part VI
Mutual legal assistance in criminal matters

CHAPTER III
Special forms of international assistance


Article 156
Temporary transfer of persons in custody for purposes of investigation

1. The provisions of Article 155 shall apply to cases in which, upon agreement, a person arrested or imprisoned in Portugal may be temporarily transferred to the territory of another State for purposes of investigation in the framework of Portuguese criminal proceedings.

2. The agreement mentioned in paragraph 1 above shall not be required where the transfer is made under an international agreement, treaty or convention that does not impose it.

3. The provisions of the preceding paragraph shall apply mutatis mutandis to requests of assistance submitted to Portugal.

Part VI
Mutual legal assistance in criminal matters

CHAPTER III
Special forms of international assistance


Article 157
Safe conduct

1. Any person appearing on the territory of a foreign State under the terms and for the purposes of the provisions of Articles 154, 155 or 156 above:

a) shall not be arrested, prosecuted, punished or subjected to any other restriction of his personal liberty in respect of any act anterior to his departure from the Portuguese territory other than those mentioned in the request for co-operation;
b) shall not be under an obligation to accept to be heard or make a statement at proceedings other than those mentioned in the request.

2. The immunity provided for in paragraph 1 above shall cease when the person voluntarily remains in the territory of the foreign State for more than 45 days from the date when his presence is no longer required or, having left that territory, voluntarily returned to it.

3. The provisions of the preceding paragraphs shall apply mutatis mutandis to any person habitually resident in a foreign State who comes to Portugal as a result of a summons to appear for purposes of criminal proceedings.

Part II
Extradition

CHAPTER I
Extradition from Portugal

Section I
Requirements

Article 31
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.

Article 32
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.

Article 33
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.

Article 34
Re-extradition

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.

Article 35
Postponed surrender

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.


Article 36
Temporary surrender

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.

Part IV
Enforcement of criminal judgements

CHAPTER I
Enforcement of foreign criminal judgements

Article 96
Specific requirements

2. Without prejudice to the provisions of the preceding paragraph, a foreign judgement may also be enforced in Portugal if the person concerned is already serving in Portugal a sentence for any offence other than the offence for which the foreign judgement was passed.

Part VI
Mutual legal assistance in criminal matters

CHAPTER III
Special forms of international assistance

Article 156
Temporary transfer of persons in custody for purposes of investigation

1. The provisions of Article 155 shall apply to cases in which, upon agreement, a person arrested or imprisoned in Portugal may be temporarily transferred to the territory of another State for purposes of investigation in the framework of Portuguese criminal proceedings.

2. The agreement mentioned in paragraph 1 above shall not be required where the transfer is made under an international agreement, treaty or convention that does not impose it.

3. The provisions of the preceding paragraph shall apply mutatis mutandis to requests of assistance submitted to Portugal.

Part VI
Mutual legal assistance in criminal matters

CHAPTER III
Special forms of international assistance

Article 157
Safe conduct

1. Any person appearing on the territory of a foreign State under the terms and for the purposes of the provisions of Articles 154, 155 or 156 above :

a) shall not be arrested, prosecuted, punished or subjected to any other restriction of his personal liberty in respect of any act anterior to his departure from the Portuguese territory other than those mentioned in the request for co-operation ;
b) shall not be under an obligation to accept to be heard or make a statement at proceedings other than those mentioned in the request.

2. The immunity provided for in paragraph 1 above shall cease when the person voluntarily remains in the territory of the foreign State for more than 45 days from the date when his presence is no longer required or, having left that territory, voluntarily returned to it.

3. The provisions of the preceding paragraphs shall apply mutatis mutandis to any person habitually resident in a foreign State who comes to Portugal as a result of a summons to appear for purposes of criminal proceedings.

Article 89
Surrender of persons to the Court
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.

Article 97
Consultations
Where a State Party receives a request under this Part in relation to which it identifies
problems which may impede or prevent the execution of the request, that State shall consult with
the Court without delay in order to resolve the matter. Such problems may include, inter alia:
(a) Insufficient information to execute the request;
(b) In the case of a request for surrender, the fact that despite best efforts, the person
sought cannot be located or that the investigation conducted has determined that the person in the
requested State is clearly not the person named in the warrant; or
(c) The fact that execution of the request in its current form would require the
requested State to breach a pre-existing treaty obligation undertaken with respect to another State.