Author: Kateryna Biezhanova, Attorney at Law
Neofelis Law Group (Ukraine)
What is extradition? Extradition is a complex legal procedure that involves the transfer of an individual by one state to another for the purpose of prosecution or the execution of a sentence. That is, it is a process when a person who is suspected or has already been found guilty is transferred from one country to another in order to be brought to criminal responsibility. It is mandatory that the person is internationally wanted pursuant to a court decision of Ukraine. This happens when a person leaves the country where they committed a crime and hides in another state, hoping not to be found. However, at the international level, countries have foreseen such situations, and therefore have concluded a number of international agreements for the interaction of law enforcement agencies in this direction.
Regulation of the issue of extradition between Ukraine and Portugal Ukraine and Portugal, like many other countries, have concluded a number of bilateral and multilateral agreements that regulate the extradition procedure. These agreements define the grounds for extradition, the procedure for its implementation, and guarantees of the rights of persons subject to extradition.
Grounds for extradition. In order for a person to be extradited from Portugal to Ukraine, it must be proven that:
- the person committed a crime that is punishable under the laws of both countries;
- there is sufficient evidence to suspect or accuse this person;
- the person is hiding on the territory of Portugal.
Extradition procedure. The extradition procedure is quite complex and lengthy. It includes the following stages:
- Submission of the request: The Ukrainian side sends an official request for extradition to Portugal.
- Consideration of the request: Portuguese courts consider the request, including verifying the circumstances that may prevent extradition, and make a decision on extradition or refusal to extradite the person.
- Arrest of the person: If a decision is made to extradite, the person is arrested and prepared for transfer to the Ukrainian side.
- Transfer of the person: The person is transferred to the Ukrainian side in accordance with the terms provided for in international agreements.
Guarantees of the rights of a person subject to extradition During the extradition procedure, the rights of the person subject to extradition are protected in accordance with international standards. In particular, such a person has the right to:
- protection from unlawful arrest and detention;
- the right to a lawyer;
- the right to appeal the decision on extradition.
Between Ukraine and Portugal, various international agreements have been concluded concerning the cooperation of states and can be taken into account in “extradition” issues, such as:
- Agreement on legal cooperation between the Ministries of Justice of Ukraine and Portugal of March 23, 1999,
- Agreement on friendship and cooperation between Ukraine and the Portuguese Republic of June 5, 2003,
- Agreement between Ukraine and the Portuguese Republic on cooperation in the field of combating crime. In addition, Ukraine and Portugal are parties to multilateral international treaties that regulate extradition issues:
- European Convention on the Extradition of Offenders 1957 (Ukraine acceded on January 16, 1998), according to which:
- Additional Protocol to the European Convention on the Extradition of Offenders 1975 (Ukraine acceded on January 16, 1998)
- Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters 2001 (Ukraine acceded on January 16, 1998)
- Convention on the Transfer of Sentenced Persons 1983 (Ukraine acceded on September 22, 1995)
- Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters 199k (Ukraine recently withdrew from this agreement on December 1, 2022)
Extradition of the offender is carried out for offenses that, under the laws of Ukraine and Portugal, are punishable by deprivation of liberty for at least one year or more severe. If a person is found guilty on the territory of Ukraine, the term of punishment must be at least four months.
However, Portugal will not extradite persons under the following circumstances:
- if it is proven that the case will be considered under a procedure that does not provide for legal guarantees of criminal proceedings that correspond to internationally recognized standards and are essential for the protection of human rights, or to those persons who it will be proven that they will serve their sentence in conditions that degrade human dignity;
- if the person is prosecuted for a crime punishable by life imprisonment or arrest;
- if the person is a citizen of Portugal;
- extradition for military or political offenses from Portugal is not applicable;
- if the statute of limitations (time limits for prosecution) have expired, extradition will not be carried out.
The procedure for extradition of Ukrainian citizens is regulated exclusively by Ukrainian law, in particular by the Criminal Procedure Code of Ukraine.
Briefly, the extradition process looks as follows:
- The investigator, prosecutor, if the person has not been convicted, or the court, if the person has been convicted, prepares a request for the extradition of the person to Ukraine.
- The request is made in writing, certified by a seal and must contain information about the person, the circumstances and the offense she is accused of, as well as the following attachments:
- a certified copy of the decision of the investigating judge or court on the detention of the person in custody (if extradition is necessary for prosecution);
- a copy of the verdict with confirmation of its entry into legal force (if extradition is necessary to execute the verdict);
- a certificate of information indicating the commission of a criminal offense by the person, or a certificate of evidence confirming the person’s guilt in committing it;
- a conclusion of competent authorities that the person is a citizen of Ukraine;
- a certificate of the part of the unserved punishment (if the person did not serve all the punishment);
- other information (such as the time and place of the crime, description of the relevant person, etc.)
- The request is submitted to the Office of the Prosecutor General (if the person has not been convicted) or the Ministry of Justice of Ukraine (if the person has been convicted) within 10 days from the date of the person’s detention on the territory of Portugal.
- The Office of the Prosecutor General or the Ministry of Justice of Ukraine sends a request to the Ministry of Justice of Portugal requesting the extradition of the person.
- After receiving the request, the national authorities of Portugal decide whether or not to extradite the person. If the person is not accepted on the specified day, they may be released after 15 days and in any case are released after 30 days. A person extradited to Ukraine may be brought to criminal responsibility or a court sentence may be executed against them only for those offenses that were indicated in the request for extradition of the person. Also, if the national authorities of Portugal expressed certain restrictions during the decision-making process on the extradition of the person to Ukraine, they are mandatory for the Ukrainian authorities. The time of detention of the person on the territory of Portugal is included in the total term of serving the punishment. The system works in a mirror-like manner in relation to citizens of other states in the event of a request for extradition from Ukraine.
Features of extradition from Portugal Portugal, like many other European countries, has certain features in the extradition procedure. In particular, Portugal does not extradite its citizens, as well as persons who are persecuted for political crimes.
Conclusion Extradition is a complex and multifaceted process that requires a deep knowledge of international law. Successful extradition depends on effective cooperation between law enforcement agencies of different countries and compliance with international standards. For more detailed information on the extradition procedure, it is recommended to contact our lawyers from the Law Firm “Neofelis Lo Group” (you can sign up for a consultation through the websites https://www.neofelis.com.ua/ and https://kat.com.ua/) or our partners in Portugal – Raposo Subtil e Associados (https://rsa-lp.com/)