This article aims at assessing the future implementation in Portugal of the Statute of the International Criminal Court, pointing out the main areas of possible conflict with the Portuguese Constitution and suggesting ways of dealing with it. It is divided into 5 short sections which deal, respectively, with the way International Law is incorporated into the Portuguese municipal law, with the compatibility of the Rome Statute with the Portuguese Constitution, namely in what refers to immunities, life sentences and extradition, with constitutional amendments that might eventually be needed, with a brief reference to the subsequent revision of the Portuguese criminal law and, finally, with some concluding remarks.
1. Incorporation of International Law into the Portuguese internal order
The Portuguese Constitution addresses the relationship between International and domestic Laws in article 8 (under the title “International Law”), which reads as follows:
“1. The rules and principles of general or customary international law are an integral part of Portuguese law.
2. Rules provided for in international conventions that have been duly ratified or approved, shall apply in national law, following their official publication, so long as they remain internationally binding with respect to the Portuguese State.
3. Rules made by the competent organs of international organisations to which Portugal belongs apply directly in national law to the extent that the constitutive treaty provides.”
Thus, the Statute of the International Criminal Court, being a treaty, is fundamentally ruled by paragraph 2 of article 8, although it is arguable that, whenever it codifies customary International Law or general principles of International Law, paragraph 1 would apply[1]. One could also argue that paragraph 3, which was introduced because of European Union requirements of direct application of its law, could apply in this instance whenever the Statute creates a direct obligation on the part of the State-Party[2]. I will now concentrate on paragraph 2, since it foresees specifically our situation, and I will only address the other paragraphs if need arises.
For the ICC Statute to apply in Portugal, it is required, therefore, that it be ratified and published in the official journal, “Diário da República”. According to this journal’s rules, besides the publication in one of the original languages, the publication of the translation of treaties into Portuguese is compulsory.
Therefore, the first task that faced the Portuguese authorities was the translation of the Statute, which, at the request of the Ministry of Foreign Affairs, was carried out by a special department of the Attorney-General’s Office in charge of matters of International and Comparative Law, the “Gabinete de Documentação e Direito Comparado da Procuradoria-Geral da República”. It was later revised by the staff of the cabinet of the Attorney-General and by the members of the Portuguese delegation to the ICC who made several suggestions concerning some points.
According to paragraph 2, as seen above, once ratification and publication are completed, the treaty is immediately in force in Portugal, our system thus having opted for a monistic approach of prevailing International Law (or quasi-monistic, since publication is required for treaties).
To prepare for ratification, and since several representatives of various Ministries had participated in the Portuguese delegation through the years of elaboration of the Statute, the Ministry of Foreign Affairs opted for asking only one advisory opinion from the Attorney-General’s Office on the compatibility of the Statute with Portuguese Constitutional Law.
Although article 8 itself does not address clearly this issue, it is widely consensual among experts that International Law (or, at least, treaties), is hierarchically placed above national ordinary law but bellow the Constitution[3].
The arguments normally offered are the following:
a) as for ordinary municipal law, the last part of paragraph 2 of art. 8 states that treaties “…. apply in municipal law as long as they remain internationally binding with respect to the Portuguese State.” This has been generally understood to mean that internal law cannot revoke previous international treaty law and that only adequate international processes can lead to this result. The conclusion is that internal law is subordinated to International Law and cannot contradict it;
b) as for constitutional law, the argument is contextual and results from an interpretation of other articles of the Constitution, since art. 8 is mute on this point. These articles are mostly under Part IV, “Safeguards and revision of the Constitution”. Article 278 (Anticipatory review of constitutionality), states, in its paragraph 1, that ” The President of the Republic may request the Constitutional Court to undertake an anticipatory review of the constitutionality of any provision of an international treaty that has been submitted to the President for ratification….”; art. 279 (Effects of rulings), in its paragraph 4, refers: “Where the Constitutional Court rules that a provision of a treaty is unconstitutional, that treaty shall be ratified only if the Assembly of the Republic approves it by a majority of two-thirds of the Deputies present, provided that the majority exceeds an absolute majority of the Deputies entitled to vote.”. The argument goes that no type of law can be judged by a set of laws that has either the same or inferior standing, thus concluding that constitutional law is hierarchically superior to international treaty law.
The Portuguese Constitution also includes a constitutional review of laws after their enactment, the general provision being art. 277, under the heading “Positive unconstitutionality”[4], which prescribes:
“1. Rules of law that contravene any provision of this Constitution or the principles contained in it are unconstitutional.
2. International treaties that are unconstitutional, in substance or form, but have been duly ratified may nonetheless be applied as part of Portuguese law, provided that the provisions are applied as part of the law of the other treaty party, unless the unconstitutionality arises from the contravention of a fundamental principle.”
Based on the ruling of this provision, scholarship has generally made a distinction among three types of unconstitutionality regarding international treaties: formal (when the due procedures or the adequate form were not followed), substantial (when the provisions of the treaty go against non-fundamental constitutional provisions) and affecting fundamental principles of the Constitution. This latter case is the only one in which a ratified and published treaty cannot be applied, even if it is being applied by the other party (or, we should add, “parties”, since the logic seems to have been to fraction a multilateral treaty into several bilateral situations, probably because of the regime of international responsibility that might arise with the non-compliance with it).
Therefore, the Constitution also foresees the possibility, although restricted, of a treaty (or part of it, of course) of which Portugal is a party, being put out of force by a declaration of unconstitutionality but only when it violates a fundamental principle.
As referred above, these arguments do not stand for customary international law. For part of the scholarship, they might not even stand for, at least, some treaties on human rights, since art. 16, under the title “Fundamental rights: scope and interpretation” reads as follows:
“1.The fundamental rights contained in this Constitution shall not exclude any other fundamental rights provided for in the laws or resulting from applicable rules of international law.
2. The provisions of this Constitution and of laws relating to fundamental rights shall be construed and interpreted in harmony with the Universal Declaration of Human Rights.”
Furthermore, as seen above, article 8 (1) prescribes that the rules and principles of general or customary International Law are an integral part of Portuguese law, thus apparently giving them a standing at least equal to that of Portuguese constitutional rules since such a prescription is foreseen in the Constitution itself. As far as the Rome Statute incorporates this type of rules, one could easily argue that its standing would not be inferior to that of the Constitution[5].
2. Compatibility with the Constitution
Therefore, for the Statute to be ratified, compatibility with the Constitution needs to be assured. Ordinary municipal law will have to be adapted but that can be done at a later stage. Thus, the main constitutional substantive problems seem to be threefold: the regime of immunities, of life sentences and, to a much more minor extent, of extradition[6].
Immunities – The irrelevance of the official capacity prescribed in art. 27 of the ICC Statute (“1.This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.”) may raise some problems with what the Portuguese Constitution states. The latter foresees immunities for three types of people occupying posts of authority: the President, the members of the Government and the members of Parliament[7].
a) As for the President, art. 130 (Criminal liability) states:
” 1. The President of the Republic shall be answerable before the Supreme Court of Justice for offences committed in the performance of his or her duties.
2. It is the duty of the Assembly of the Republic to initiate proceedings at the proposal of one-fifth, that is supported by two-thirds, of the Deputies entitled to vote.
3. Conviction results in forfeiture of office and disqualification from re-election.
4. The President of the Republic shall be answerable before a court of law, after the end of his term of office, for offences not committed in the performance of his or her duties.”
Paragraph 2 seems to raise a problematic issue, since the trigger mechanism for initiating proceedings at national level lies with the parliament (Assembly of the Republic), requiring a two thirds majority to bring the Head of State to court. However, one could easily argue that, should the parliament prevent the judgment, article 17 (issues of admissibility) of the ICC Statute would apply, thus having the Court judging the Head of State because of unwillingness of the state concerned. No incompatibility would, therefore, be present between the Statute and the Portuguese Constitution.
Another possible problem could arise, at least on a temporary basis, from the letter of paragraph 4. In fact, for acts committed in a private capacity, the President only answers after his or her term of office. Since the mandate is of 5 years and there can be re-election for a second mandate, in theory it would be possible to have a 10-year period of immunity for offences not committed in the performance of his or her duties. It seems, nevertheless, that for the President to commit one of the crimes referred to in article 5 of the Statute not in his or her official capacity while the term is still pending, would be completely impossible and would never happen in practice.
Furthermore, the checks and balances foreseen in the semi-presidential system of the Portuguese Constitution would make this situation virtually impossible and would also render the commission of crimes in an official capacity very difficult, since the Assembly of the Republic has general supervisory powers of monitoring the observance of the Constitution and the laws (art. 162 (a)) and may, under art. 163 (c), ” … institute proceedings against the President of the Republic for offences committed in the performance of his or her functions…”, as was already pointed out when referring to article 130, paragraph 2.
b) As for members of parliament, art. 157 (Immunities), paragraph 3, of the Portuguese Constitution states that “Deputies shall not be detained or arrested unless on the authority of the Assembly or when found in flagrante delicto committing a felonious offence punishable by imprisonment as set out in the above paragraph [more than three years].”. The types of crimes envisioned by the Statute would fall under this category as far as penalties are concerned but the requirement of the flagrante delicto could make it difficult to harmonize the ICC Statute with the Portuguese Constitution. However, it would always be possible for the Assembly to authorize such an arrest. Should that not be the case, article 17 of the Statute could come into play, the person in cause would be directly submitted to the jurisdiction of the ICC and thus the considerations referred to above would also apply here.
Another area of possible problems could stem from what paragraph 1 of art. 157 prescribes: “Deputies are not subject to civil, criminal or disciplinary proceedings in respect of their voting or opinions expressed in the performance of their duties.”. Since art. 25 of the Statute considers responsible not only the person who commits the crime but also those who order, solicit or induce the commission or its attempt, those who aid, abet or otherwise assist the commission or the attempt or in any other way contribute to the commission or attempted commission or, in respect to genocide, directly and publicly incite the commission of such a crime (paragraph 3 (a) to (e)), it is possible to envision that deputies could be considered responsible for a law which would impose, or, at least, authorize, the commission of these crimes.
Once again, this is a very farfetched possibility which is rendered virtually impossible by the system of checks and balances of the Portuguese Constitution in which the Parliament, the President and the Government are all inter-linked[8]. In fact, a law cannot be in force unless it is, after adoption by the Parliament, promulgated by the President of the Republic, the absence of which leads to the nonexistence of the said law (art. 137) and later counter-signed by the Government (art. 140, the absence of which leads also to the nonexistence of the law) and published in the official journal. During this process the judicial branch can intervene, as seen above for the Constitutional Court in the anticipatory review of constitutionality and, after the publication, by several other courts. Therefore, the possibility of a law authorizing or imposing the commission of the crimes of art. 5 of the Statute is extremely remote or even totally impossible, since it would entail a complete change or a complete paralysis of a constitutional regime. Such a dramatic outcome would have consequences far beyond the non-compliance with the cooperation solicited by the Court, since it would put into question the very basis of a constitutional regime.
c) As for members of Government, problems might arise from article 196 of the Portuguese Constitution that prescribes for these persons the following regime of criminal liability:
“1. No member of the Government may be detained or imprisoned without the permission of the Assembly of the Republic, except for a felonious crime punishable with a maximum sentence of three years and in flagrante delicto.
2. Where criminal proceedings are instituted against a member of the Government who is charged with an offence, the Assembly of the Republic shall decide whether or not that member shall be suspended so that the proceedings can be pursued. The decision to suspend shall be obligatory where it concerns a crime referred to in the above paragraph.”.
Thus, the limitations are lesser here than in the case of the deputies and the authorization by the Assembly of the Republic would be required always should the ICC so request, as seen above for the case of the deputies for crimes not of a flagrante delicto situation. Similar considerations, with the application of article 17 on the unwillingness of a State to carry out a judgment would, therefore, apply.
Life Sentences – Another potential problem, and probably the most serious of them all, might arise between art. 77(1) (b) of the ICC Statute, ” 1. …. the Court may impose one of the following penalties …:(b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.”, and article 30 paragraph 1 of the Portuguese Constitution. This latter article states:
“No one shall be subjected to a sentence or security measure that involves deprivation or restriction of liberty for life or for an unlimited or indefinite term.”.
One could argue that such a prescription would only apply within the Portuguese territory, thus making it irrelevant for judgments made outside the country[9], and that art. 103 (1) (b) of the Rome Statute (Role of States in enforcement of sentences of imprisonment) would allow, in any case, for the attachment of conditions if the sentence were to be carried out in Portuguese prisons, thus preventing any life sentence to be applied there[10].
However, article 33 paragraph 5 of the Portuguese Constitution makes this argument less conclusive since it forbids the extradition, in many instances, when life sentence could apply:
“5. Extradition in respect of offences punishable, under the law of the requesting State, by deprivation of liberty or detention order for life or an indeterminate term, shall only be permitted on condition of reciprocity based on an international agreement and provided that the requesting State gives an assurance that such sentence or detention order will not be imposed or enforced.”.
One could argue that reviews and other procedures to be applicable to life imprisonment might not be enough to prevent this possible incompatibility with the Constitution, since paragraphs (3) and (4) of art. 110 of the Statute (Review by the Court concerning reduction of sentence)[11] only give the Court the option of reducing the sentence after 25 years in case of life imprisonment. Although some factors are listed as possible grounds for reducing the sentence, the Court will only do so if it is convinced that those conditions are fulfilled. It would be more in line with the Portuguese Constitution to automatically reduce the sentence unless the Court decided those conditions were not fulfilled. Actually, the Portuguese delegation raised this problem early in the negotiations but it faced a consensus of having the penalty of life imprisonment as the most serious of the penalties to be applied by the Court. A review mechanism, as it is now enshrined in article 110, was the most our delegation could achieve.
On the other hand, it is always possible to argue that the extradition provisions do not apply in the context of an International Criminal Court, as will be defended in the next section, and, therefore, that the constitutional limitations on the length of sentences would apply merely to those which were to be carried out by another State and not by the international community embodied in an international judicial institution. This line of reasoning would make the application of arts. 103 and 106 of the Statute (Supervision of enforcement of sentences and conditions of imprisonment)[12] fully adequate to solve this problem.
Even if one does not follow this path, it is also worth noting that the Portuguese Constitution has become progressively more flexible in this area, namely since its last revision of 1997, for it now expressly allows, as seen above, for extradition to a State where life imprisonment is applicable as long as the requesting State “… gives an assurance that such sentence or detention order will not be imposed or enforced.”
The Portuguese implementing law on judicial cooperation, enacted last year, Law n.144/99, of August 31st, follows this trend when, in spite of, in art. 6 (1) (f), prescribing that the request for cooperation is to be refused if to the crime in question life imprisonment might be applied, it allows, in paragraph 2 (b), for such cooperation to be possible if there are guarantees that such a penalty will not, in fact, be applicable. Paragraph 3 includes, among other factors to assess this guaranty, the existence of a review mechanism[13]. It seems that this is a pretty strong argument in favor of cooperation with the Court, since this mechanism, as seen previously, is enshrined in its own Statute in article 110.
Furthermore, it is important to stress again that both the Constitution and Law n.144/99 envision merely a situation of extradition to a State. Surrender to an international judicial institution would necessarily lead to a greater reliability in the whole process, in the application of the sentences and in their review mechanisms. It is, for instance, more likely that the ICC will follow the prescriptions of art. 10 (3) of the International Covenant on Civil and Political Rights which points out that the aim of every penitentiary system is the reformation and social rehabilitation of the prisoners, than that every requesting State will do so. This will certainly influence decisions both at the stage of the sentence and of its review, not the least because the Statute expressly refers to the application by the Court of treaties and principles and rules of International Law in paragraph 1(b) of art. 21.
Finally, it is worth noting a very important caveat enshrined in art. 3 of Law 144/99, under the title “Prevalence of treaties, conventions and international agreements”: “1.The forms of cooperation referred to in article 1 are to be ruled by the provisions of treaties, conventions and international agreements that are binding on the Portuguese State and, in their absence or insufficiency, by the provisions of the present law.”. The forms of cooperation referred to in article 1 are, among others, extradition and the surrender of persons who have been convicted with penalties that impose the deprivation of freedom. It is important to notice the distinction that the law draws between extradition and surrender and this distinction is highlighted by paragraph 2 of art. 1, which states: “The contents of the previous paragraph [the forms of judicial cooperation that include extradition and surrender] is applicable, with the necessary adaptations, to the cooperation between Portugal and the international judicial entities established by treaties or conventions that are binding on the Portuguese State.”[14].
Although these arguments would not necessarily imply that the constitutional provisions on life imprisonment have been satisfied, they certainly contribute strongly to the acceptance of an international judicial regime in which life imprisonment is subject to a compulsory review mechanism. Furthermore, it might be also useful to note that extradition can only be decided by a court, in accordance with paragraph 6 of article 33 of the Portuguese Constitution[15], and that the existent case law points out in the same direction as art. 6(3) of Law 144/99, namely that there will be extradition whenever there is a probability that life imprisonment will not, in fact, take place because there are mechanisms that will prevent such an outcome.
Extradition – Although the Statute was careful enough to never use this term, and to define surrender in its art. 102, paragraph (a) in contrast with the definition of extradition in paragraph (b), thus avoiding connotations and assimilation to the latter regime of extradition to another State, the fact remains that most Constitutions do not provide for a system of surrender but for one of extradition, the “temptation” remaining for applying those rules to the present instance. Article 33 of the Portuguese Constitution addresses this issue in its paragraphs 3 and 5. Paragraph 5 has been cited above; paragraph 3 states:” The extradition of Portuguese citizens shall only be permitted where reciprocal arrangements have been established by international treaty, in cases of terrorism and organised international crime and provided that the legal order of the requesting State enshrines guarantees of fair and just trial.”.
The potential limitations on extradition of nationals, however, as seen above, seem to have been overcome by the Portuguese interpretation that surrender to an international court and extradition to another State are distinct concepts and Law n.º 144/99, of August 31, referred to above, namely its articles 1 paragraph 2 and 3, already cited, prescribes a full cooperation with international courts, thus preventing any of the possible objections which apply to extradition to be invoked in this case[16].
3. Eventual constitutional amendments
The advisory opinion of the Attorney-General’s Office was issued by late January of the present year: it is a long document that analyses the compatibility of the Statute both with the Constitution and with ordinary law and reaches the conclusion that no constitutional amendment is necessary[17]. This opinion is an internal document which, according to previous practice, is not to be published or, unlike in some other national systems, attached to an enacting bill when debates take place at the Council of Ministers or at the Assembly of the Republic. It also does not prevent the Government from asking additional opinions from any other bodies or individuals, such as academics and it certainly is not binding on the political power.
Therefore, depending on how the process develops, a revision of the Constitution might be necessary or not. Needless to add, the process will be much quicker if no such revision takes place: at the moment, it seems that it is the political will of the Government to ratify the Statute in a short period, needing only agreement of the Assembly of the Republic, in which no serious objections are foreseen so far. On the contrary, the atmosphere at the parliament seems to be of great encouragement for such pursuits, and awareness of their fundamental importance has increased very much with the dramatic events that took place in East Timor, mostly during the period immediately after the referendum of August 30, 1999, a situation deeply felt by all the Portuguese public opinion and all the political parties, regardless of their specific ideology.
The ratification process got a bit delayed due to the parliamentary elections which took place on October 10th since there was the need to resume work at the various parliamentary commissions which had to be assigned after the elections. However, as no radical political changes occurred, it is highly probable that progress will not be hampered and that a strong political will to ratify the Statute will remain. These elections also delayed the process at the earlier stage of governmental approval since the Prime Minister is to be appointed by the President of the Republic “…with due regard for the results of the general election.” (article 187, paragraph 1 of the Constitution) and the rest of the Government is appointed on recommendation of the Prime Minister (paragraph 2 of the referred article).
In any case, in the event that a constitutional amendment is still considered necessary, (and that requirement seems less likely after the Attorney-General’s advisory opinion), then paragraph 2 of article 284 of the Constitution provides that, at any time, the Assembly can assume powers of constitutional reform if that is decided by four-fifths of its members entitled to vote[18]. The power to make proposals belongs to any member of the parliament (art. 285) and the amendments have to be approved by a two thirds majority of the members of the Assembly entitled to vote (art. 286 (1)). Finally, the new text must be published (art. 287 (2)).
However, a serious problem might arise in this context, since the Constitution establishes material limits on the power of revision, thus prescribing that there are aspects that cannot be revised. Article 288, entitled “Limits on matters of revision” includes, in its paragraph d), “The rights, freedoms and guarantees of citizens;”. It is the Constitution itself that includes, in Section II of Part I (“Fundamental Rights and Duties”), entitled precisely “Rights, freedoms and guarantees”, the issues of life sentence and of extradition. If this latter aspect might be of less concern, as referred already above, the question of life imprisonment might pose some more difficult questions, since even a revision of the Constitution, slow and complex as it would be, does not seem to be the solution for the issue. It is, therefore, to be hoped that the political power will follow an action in line with the advisory opinion already produced and consider that the guaranties of review offered in the Statute are strong enough to make it highly probable that, in practice, no life sentence will take place or, alternatively, that the provisions of the Constitution do not rule on the cooperation with an international penal institution but merely on the traditional State to State relationship.
4. Revision of Portuguese ordinary law
Once the Statute is ratified, a new phase begins of harmonizing the Portuguese domestic criminal and criminal procedure laws to the requirements of the Statute. This could be done through a revision of the two main codes involved but, due to time constraints, it will be better to opt for the enactment of specific laws addressing the areas at issue. The decision on this point is still to be taken although the advisory opinion of the Attorney-General’s Office points out in the direction of the second option.
Although the focus of this study is solely on constitutional issues, I will make some short marginal comments in the area of ordinary legislation since some of it might be of great help for understanding the application of some often rather general and vague constitutional provisions.
As for issues of cooperation and enforcement, Law 144/99, of August 31, 1999, is certainly one of these cases, as already seen above. It states the main principle of cooperation and it opens a wide door for cooperation with the ICC, since it prescribes that Portuguese authorities will cooperate fully with international tribunals created by a treaty which Portugal has ratified (art.1 (2)). Furthermore, this law, which foresees various forms of international judiciary cooperation, prescribes specifically, as seen above, in its article 3, under the title “Primacy of treaties, conventions and international agreements”, that the provisions of these international instruments will prevail over any other Portuguese norms. The latter will only apply when the former does not exist or is not sufficient to cover the case at hand. Thus, as far as Parts 9 and 10 of the ICC Statute are concerned (“International Cooperation and Judicial Assistance” and “Enforcement”), only the details of the relationship with the Court will have to be regulated, probably using, as far as possible, existing legislation, such as Law 144/99, and adapting it to the specificity of the situation.
Unfortunately, the specific law for cooperation with the International Tribunals for former Yugoslavia and for Rwanda has not been enacted yet, partly due to the elections that took place late last year and were already mentioned. A draft law (n. 243/VII) was submitted to parliament and was approved generally[19]. It was then assigned to be discussed more specifically at a commission’s level (at the Commission for Foreign Affairs), the process having been interrupted by the parliamentarian elections of October of last year.
Virtually the same draft law, with only minor adjustments, renamed now Draft Law n. 7/VIII[20], was debated again before the new Assembly and was adopted with no votes against and the abstentions of the Communist Party, of the Greens and of the “Bloco de Esquerda”, a small left wing party with only two deputies[21]. It is important to note that the abstentions were due purely to political reasons, namely the understanding by the parties that took such position that the Tribunal for former Yugoslavia was an “… anti-Serbian tribunal which exempts the Croats…” and that would it was ” … evident that all these questions would be totally different when one discusses the creation of a permanent international criminal court.”[22].
This Draft Law was then assigned, for specific discussion, to the “Commission for Constitutional Affairs, Rights, Freedoms and Guarantees” but, as to this date, it had not been placed in the agenda of any of its meetings. The adoption of this law would be fundamental as a crucial precedent for the compatibility of the ICC Statute with the Portuguese Constitution, since one is confronted in the Statutes of the Ad Hoc Tribunals with virtually the same issues and with much less guarantees, namely in which life imprisonment is concerned.
As for a brief summary of other types of implementing legislation of the ICC Statute, taking into account the functioning of complementarity, some adaptations are certainly needed in the more substantive aspect of the types of crimes. In fact, our Criminal Code, just recently revised by Law n.º 65/98, of September 2, 1998, provides for punishment, under Title III, of “Crimes Against Peace and Humanity” (arts. 236 to 246) but it does not include all the actions that are considered crimes under the Rome Statute. In fact, the crimes foreseen are: under Chapter I, entitled “Crimes against Peace”, incitement to war (art. 236), incitement of armed forces (art. 237) and conscription of mercenaries (art. 238); under Chapter II, entitled “Crimes against Humanity”, genocide (art.239, defined in the same way as in the Rome Statute), racial or religious discrimination (art. 240), war crimes against civilians (art. 241), destruction of monuments (art. 242), torture and other cruel, degrading or inhuman treatment (art. 243) and serious acts of torture and other cruel, degrading or inhuman treatment (art. 244). Among others, there is no mention of crimes of a sexual or gender nature, of disappearance of persons, of proscribed arms, just to name a few. Therefore, implementing legislation is surely necessary for individuals to be judged in Portugal for the crimes foreseen in the Rome Statute, with the exception of the crime of genocide, sufficiently covered by the current law. That might be done in a rather simple way, by enactment of a special law which might refer to the treaty and consider that the crimes mentioned in article 5 and described in articles 6 to 8 (with special mention to the definition of the crime of aggression which will be adopted only at a future stage) are also punishable in Portugal. Once more, the mode of proceeding has not been decided yet.
Another fundamental area that will have to be legislated is the one of non-applicability of statute of limitations prescribed in article 29 of the ICC Statute. In fact, although the Constitution is mute in this issue, the Portuguese Penal Code, in its article 118, establishes specific deadlines for all the crimes, mentioned through the penalties that apply to them, stating that the most serious ones will prescribe within 15 years of their practice. Furthermore, Portugal has never ratified any international convention on non-applicability of statute of limitations. However, the issue seems to be one of ordinary law, dependent on political will rather than on constitutional limitations, and so it seems that no major difficulties will arise[23].
5. Conclusion
In sum, after signing the Rome Statute on October 7, 1998, the procedure for its implementation began with the translation of its provisions into Portuguese and the request for an advisory opinion on its compatibility with the Constitution. This opinion concluded that no constitutional amendment was needed but this fact does not preclude other opinions to be asked from official bodies or private experts, should the political power so decide.
In the event that the advice of the Attorney-General’s Office is followed and, therefore, no constitutional revision is considered to be needed, it is feasible that the process will develop rapidly through the Councils of Secretaries of State and of Ministers and will speedily be submitted to parliament for adoption, since there seems to be a strong political will for ratification. Parliament will debate the bill at its general level, then, more specifically at one of its Commissions, probably the “Commission for Constitutional Affairs, Rights, Freedoms and Guarantees” and, finally, it will be submitted by approval by the Plenary (at which stage, no substantive objections are usually raised). The enactment process will be completed with the submission to the President for ratification, following which publication will take place. At a later stage, as referred to above, several revisions of ordinary criminal and procedural criminal law will be needed.
The whole process, therefore, could be rather speedy should the political will and commitment be present. The precedent of the elaboration of the legislation concerning the Ad Hoc Tribunals for former Yugoslavia and for Rwanda is not one of the most encouraging, since it is still pending. However, the speedy approval of Law 144/99, which refers specifically to the judicial cooperation with international courts set up by treaty, in a clear reference to the future ICC, is a very important landmark which provides strong arguments in favour of the constitutionality of the Statute, as was considered by the comprehensive opinion of the Attorney-General’s Office.
Since the whole procedure to ratify a international treaty is, as seen above, not too complex, should the political commitment continue to build the adequate momentum, it is to be hoped that Portugal will be a party to the Statute sometime in the very near future. Such a ratification would not only be in line with the Portuguese Constitution but, one could argue, even be demanded by its provisions which ensure a strong protection of human rights and establish numerous safeguards against abuses of power.
Paula Escarameia
Lisbon, April 25, 2000
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[1] Should such interpretation prevail, and, therefore, should the crimes foreseen in the Statute be considered as pre-existent crimes under customary international law, many of the issues raised in the following pages of this article would not arise, namely because the Constitution does not consider itself hierarchically above such law. In fact, art. 8 n°. 1 refers only that these rules and principles are an integral part of Portuguese law and in no way does the Constitution prescribe any subordination of them to the constitutional rules. This understanding is shared by several other Portuguese authors. See, among others, Pereira, André Gonçalves e Quadros, Fausto, Manual de Direito Internacional Público, ed. Almedina, Coimbra, 1993, pages 116-119; Soares, Albino Azevedo, Lições de Direito Internacional Público, Coimbra ed., Coimbra, 1988, pages 94-97 and 117 and ff.; Otero, Paulo “Declaração Universal dos Direitos do Homem e Constituição: a inconstitucionalidade de normas constitucionais?” in O Direito 1990 III-IV, pages 603 and ff.. For a contrary but isolated position in Portuguese scholarship, see Cunha, Joaquim Silva Direito Internacional Público, Almedina ed. Coimbra, 1987.However, even if what is prescribes in arts. 6, 7 and 8 of the Statute could be understood as a mere codification of existing customary or general International Law (and keeping in mind that such was the argument constantly invoked by the more conservative delegations for not including many other possible criminal conducts), it would be extremely difficult to argue that the whole Statute is part of such law, since it is decisively innovative in areas such as jurisdiction, prosecution and judicial cooperation, among many others, not to mention the very idea of the creation of a permanent international criminal judicial institution.
[2] For a general view on the question of applicability of the rules made by competent organs of international organizations to which Portugal belongs, which include mainly secondary EEC and E.U. law and the resolutions of the Security Council, see, among others, Ramos, Rui Moura “Relações entre a Ordem Interna e o Direito Internacional Comunitário”, in op.cit., pages 265-281, Vilaça/Antunes/Piçarra “Droit Constitutionnel et droit Communautaire. Le Cas Portugais” in Rivista di Diritto Europeo, n. 31, 1991, page 301, Campos, J. Mota As relações da ordem jurídica Portuguesa com o Direito Internacional e o Direito Comunitário à Luz da Revisão Constitucional de 1992, ISCSP, Lisbon, 1995, Medeiros, R. “Relações entre Normas constantes de Convenções Internacionais e Normas legislativas na Constitutição de 1976”, in O Direito, n. 122, 1990, page 355. [3] See, among others, Gonçalves e Quadros, op. cit., pages 119-124, Soares , op. cit., pages 97 –101, Moura Ramos, Rui Da Comunidade Internacional e do seu Direito, Coimbra ed., Coimbra, 1996, pages 39-61, Miranda, Jorge, “As Competências Constitucionais no Domínio da Política Externa” in Nação e Defesa, n° 14, page 37. For arguments concerning the infra-constitutional standing of International Law see, in general, Canotilho, Gomes and Moreira, Vital, Constituição da República Portuguesa Anotada, Coimbra Editora, Coimbra, 1993, pages 90 and ff. [4] This title is a consequence of the fact that the Portuguese Constitution also foresees unconstitutionality by omission in its article 283, which reads as follows:“1. At the request of the President of the Republic, the Ombudsman or, in a case where the rights of an autonomous region have been contravened, the presidents of the regional legislative assemblies, the Constitutional Court shall review and verify whether there has been an omission, in contravention of this Constitution, to enact legislation that is necessary to implement the provisions of this Constitution.
2. If the Constitutional Court verifies that there has been unconstitutionality by omission, it shall communicate that fact to the competent legislative organ.”
This mechanism remains with virtually no practical application to date.
[5] See Pereira and Quadros, op. cit. pages 117 and ff.. These authors also refer that most rules of customary and general International Law are also rules of ius cogens , thus reinforcing their line of thought that they are hierarchically placed above the Constitution. [6] An additional lesser issue that might be raised could be that of the existence of a court not foreseen by the Portuguese Constitution in Section V “The Courts” (arts. 202 to 220) followed by Section VI on “The Constitutional Court” (arts. 221 to 224). Art. 209 lists the categories of existing courts and no reference is made to any international court. Art. 277 (1) prescribes that rules that contravene any principle or provision of the Constitution are unconstitutional. It seems that, not only does the existence of the ICC not contravene any provision directly since nowhere is it said that there can be no more courts besides those referred to in art. 209, but also that its existence is in consonance with various principles, namely those of arts. 7 (International relations) whose paragraph 1 refers that Portugal shall be governed, in its international relations, by the respect for human rights, and art. 16 (Fundamental rights: scope and interpretation), whose paragraph 1 prescribes that the rights foreseen by the Constitution do not exclude any others resulting from the application of rules of international law. This issue was, naturally, previously raised with the acceptance of the jurisdictions of the European Court of Human Rights and of the Court of the European Union, not to mention that of the International Court of Justice, and never gave rise to any problems. [7] The Constitution also prescribes some immunities for judges and, in a more subtler way, for public prosecutors: art. 216 (2) states that “Judges shall not be held liable for their decisions, except in the circumstances provided for by law” and art. 219 (4) prescribes that “The Public Prosecutors shall be accountable judicial officers, hierarchically graded, and shall be transferred, suspended, retired or dismissed only in the circumstances provided by law.” The wording of these articles makes a clear exception for what ordinary law might rule in this area: that has been done , for judges, in art. 5 of Law n. 21/85, of July 30, 1985, and in article 369 of the Penal Code, in which crimes where no immunity exists are foreseen; and in art. 76(2) of Law n.60/99, for public prosecutors. If these situations can be foreseen by ordinary law, there is no doubt that they can be prescribed by the ICC Statute which, as seen above, is hierarchically superior to them. The issue, therefore, raises no problems. [8] See Canotilho, Gomes and Moreira, Vital, Fundamentos da Constituição, Coimbra Editora, Coimbra, 1991, page 213 and ff.. [9] Furthermore, art. 80 of the Statute, under the title “Non-prejudice to national application of penalties and national laws”, prescribes that the penalties to be applied by the ICC do not affect “the application by States of penalties prescribed by their national law, nor the law of States which do not provide for penalties prescribes in this Part.”. Thus, Portuguese courts would never have to apply life imprisonment but rather the penalties recognized under Portuguese criminal law. [10] Paragraph 1 (b) of article 103 of the Statute reads as follows:“At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its acceptance as agreed by the Court and in accordance with this Part”.
It is, therefore, possible, to declare that no sentence of life imprisonment will ever be carried out in Portugal.
[11] These provisions of art. 110 read as follows:” 3. When the person has served two thirds of the sentence, or 25 years in the case of life imprisonment, the Court shall review the sentence to determine whether it should be reduced. Such a review shall not be conducted before that time.
4. In its review under paragraph 3, the Court may reduce the sentence if it finds that one or more of the following factors are present:
(a) The early and continuing willingness of the person to cooperate with the Court in its investigations and prosecutions;
(b) The voluntary assistance of the person in enabling the enforcement of the of the judgments and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of the victims; or
(c) Other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence, as provided in the Rules of Procedure and Evidence.”.
Furthermore, paragraph 5 prescribes that, should the sentence not be reduce then, the question of the reduction of the sentence will be revisited at intervals and applying criteria laid down in the Rules of Procedure and Evidence.
This part of the Rules has not yet reached its final draft (and it will be dependent, obviously, on the adoption by the Preparatory Commission and, later, by the Assembly of the States Parties) but Rule 10.31(a) foresees, as of now, that subsequent reviews will take place every three years and be decided by a panel of three judges of the Appeals chamber , unless a shorter interval is decided.
[12] Paragraph 2 seems to be the most relevant is this instance:“2. The conditions of imprisonment shall be governed by the law of the State of enforcement, and shall be consistent with wildly accepted international treaty standards governing treatment of prisoners; in no case shall such conditions be more or less favourable than those available to prisoners convicted of similar offences in the State of enforcement.”
[13] Paragraph 3 of art. 6 of Law 144/99 states: “To appreciate the sufficiency of the guaranties referred to in subparagraph b) of paragraph 2, it will be taken into account, among others, what the laws and practice of the requesting State foresee concerning the possibility of non-application of the penalty, of review of the situation of the claimed person and of the granting of parole, along with the possibility of amnesty, pardon, reduction of the sentence or similar measure, foreseen in the laws of the requesting State.” [translation of the author since there is no official translation]. [14] As referred in the previous footnote, there is no official translation of this Law. The one presented is of the responsibility of the author. [15] Paragraph 6 of article 33 of the Portuguese Constitution states: “6. Extradition shall be determined by a judicial authority only.”. [16] If the question is rather clear in legal terms, it might not be so in a more political analysis such as the one which was made by some members of the Portuguese parliament when the draft law on cooperation with the two Ad Hoc Tribunals of ex-Yugoslavia and Rwanda was debated in general terms. The issue of extradition of nationals was raised but was not successfully carried trough. [17] It also reaches the conclusion that several ordinary domestic laws, namely the Penal Code, among others, need to be revised to render them compatible with the ICC Statute. [18] Article 284, under the title “Competence and time of revision” foresees both an ordinary and a special revision process:” 1. The Assembly of the Republic may revise this Constitution after 5 years have elapsed since the last occasion on which an ordinary law revising the Constitution was published.
2. However, the Assembly of the Republic may, by a majority of four-fifths of the Deputies entitled to vote, assume special powers to revise this Constitution at some other time.”.
Since the last revision took place less than three years ago, in September of 1997, we are left only with the possibility of paragraph 2.
[19] See “Diário da Assembleia da República”, I Série – N. 95, of June 18, 1999. [20] For the text of this Draft Law see “Diário da Assembleia da República”, II Série-A, N. 8, of December 10, 1999. [21] For the result of the vote, see “Diário da Assembleia da República”, I Série, N. 26. [22] Speech by João Amaral [translation by the author], for the Communist Party, in “Diário da Assembleia da República”, Série I, N. 25. The whole transcript of the debates can also be found in this site. [23] A rather elaborate constitutional argument could, nevertheless, be put forward, mostly based on paragraph 2 of article 18 of the Constitution, that prescribes: “Rights, freedoms and guarantees may be restricted by law in only those cases expressly provided for in this Constitution; restrictions shall be limited to the extent necessary to safeguard other rights or interests protected by this Constitution.”. The argument could go along the lines that the non-applicability of the statute of limitations would be a restriction established by law which was not expressly provided for in the Constitution. However, the final part of article 18(2) seems to provide for such a restriction since it would be necessary to safeguard other interests protected by the Constitution, namely the strong respect for the human rights of the victims.Artigo de autoria da Professora Doutora Paula Escarameia, publicado no livro «The Rome Statute and Domestic Legal Orders vol. I, Kress & Lattanzi» ed., Nomos Verlagsgesellschaft, Baden-Baden, 2000.
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