Lisbon, 29 July 2019 (Lusa) – The Bar Association (OA) today expressed “worrying reservations” about the legality and constitutionality of the agreement signed between Portugal and the Government of the Macao Special and Administrative Region (MSAR) concerning the “Delivery of Escaping Offenders “.

In a statement, the OA General Council understands that the agreement raises “well founded and worrying reservations, for violating fundamental and structuring principles of Portuguese Constitutional and Criminal Law”.

The bilateral agreement signed on May 15 this year has been officially published in the MSAR, but not yet in Portugal.

According to OA, the agreement provides, inter alia, for the possibility of a fact which was not previously considered a criminal offense, but which at the time of the request may already be the basis for a request for surrender by the defendant.

“This possibility violates Article 29 (1) of the Constitution of the Portuguese Republic, which provides for the principle of prohibiting the retroactive application of less favourable criminal law,” recalls the Order.

OA states that the plea also allows for the possibility that, by way of application of the agreement, surrender may occur even if the crime for which judicial cooperation is requested does not contain the same typical elements on which punishment in Portugal depends.

This possibility – adds OA – allows the surrender to be made as a result of investigations or proceedings pending in the requesting State, which concern non-criminal facts in Portugal, thereby violating the principle of criminal legality upheld by Constitution of the Portuguese Republic.

The agreement also provides for the possibility that, notwithstanding the principle of speciality, persons who are handed over to Macao will later be handed over to the People’s Republic of China (PRC), by means of the rule that “The provisions of the Agreement shall not affect the arrangements for surrendering fugitive offenders between the Macao Special Administrative Region and other jurisdictions of the People’s Republic of China.”

OA further clarifies that the agreement provides for the possibility of “provisional arrests (…) which may undermine constitutional principles in force in Portugal”.

The agreement, according to the Bar Association, “thus violates fundamental constitutional principles at the level of the application of criminal laws and the restriction of rights, freedoms and guarantees, so that the solutions provided for therein (…) cannot be ignored..