MEETING WITH THE PORTUGUESE ON THE EXTRADITION AND

UNCLAS BRUSSELS 005255

SIPDIS

SENSITIVE

DEPARTMENT FOR L/LEI, JUSTICE FOR OIA, PARIS FOR DOJ KEN
HARRIS

E.O. 12958: N/A
TAGS: CASC KCRM KJUS PO PREL EUN USEU BRUSSELS
SUBJECT: MEETING WITH THE PORTUGUESE ON THE EXTRADITION AND
MLA PROTOCOLS



1. On December 10, USEU Senior Counsel Mark Richard,
Embassy Paris Justice Attache Ken Harris and USEU/NAS Frank
Kerber attended a meeting arranged by Embassy Lisbon in an
attempt to explore the possible options for resolving
outstanding issues with respect to the conclusion of the
Portuguese protocols to the EU-U.S. Mutual Legal Assistance
and Extradition Conventions. The meeting was with Ms.
Mariana Sotto Maior and Mr. Nuno Pinheiro Torres of the
Portuguese Justice Ministry. Guy Stessens of the EU Council
Secretariat also attended.

SIPDIS


2. The U.S. side opened the meeting by pointing out
that during the course of the negotiations we have given
Portugal more than any other EU Member State by way of
concessions in an effort to accommodate their domestic needs,
including the inclusion of the non-derogation clause as well
as the provision for consultations if there is a dispute over
the granting of extradition. We were not attempting to
modify the status quo with respect to either the death
penalty or life imprisonment issue in any of the negotiations
with respect to the issues of concern to Portugal. They in
turn should not seek to renegotiate the agreements to which
they, along with their fellow Member States, had agreed over
a year ago.


3. To highlight this issue for their domestic purposes
it was pointed out that they can assert that they are not
opting to utilize the current death penalty article contained
in the negotiated text, but were retaining their current
position based on the fact that their constitutional
limitations superseded the conclusion of the current
bilateral instruments and that they believed that those
provisions controlled the bilateral relationship on these
points. The U.S., of course, would continue to disagree with
them on their legal conclusion, but it would take the issue
away from the new conventions and just reflect that the
status quo was being maintained.


4. It was further pointed out that we continue to sign
protocols with other Member Status, and the Portuguese
acknowledged that this fact is putting pressure on them not
to become an obstacle to getting these agreements ratified
and in place. We said we were prepared to meet with their
Parliamentary bodies to explain the situation if they thought
this would assist them in convincing them not to oppose the
instruments. The Portuguese said Parliament could not
address this issue until probably March, and that one
Parliamentary option is for them to submit the matter to the
Constitutional Court for its opinion before forwarding it to
the President for his approval.


5. The two sides agreed to proceed as follows: a)
We would begin immediately to try to resolve the minor
outstanding administrative issues concerning the protocol
that neither side thought posed major problems; and b) They
would consult with the Minister of Justice and see if he
endorses the approach suggested above. If so, they would
draft a proposed note reflective of that view for our
consideration. In any event, they will keep us advised of
the position of the Minister.


6. Comment: Mr. Torres was clearly inclined to think
creatively about the issues, in contrast to Ms. Sotto Maior
who seemed fixed in her position that the communication
transmitted to us last spring remained the position of
Portugal. End comment.

McKinley