YONGHONG v. PORTUGAL
Inadmissible
The applicant, [Mr Chen Yonghong], was born in 1954 and is a Chinese national with Taiwanese nationality. When the application was lodged, he was being held in a prison at Coloane in Macao. He is represented before the Court by Mr J.L. da Cruz Vilaça, Mr L.M. Pais Antunes and Mr R. Oliveira, of the Lisbon Bar. The facts of the case, as presented by the parties, may be summarised as follows. The applicant was arrested by the Macanese police on 27 May 1999 under an international arrest warrant issued by the Nanjing (People’s Republic of China) State Security Department on suspicion of fraud, within the meaning of Articles 152 and 266 of the Chinese Criminal Code. On 1 July 1999 the Chinese Ministry of Foreign Affairs lodged a formal request with the Portuguese Embassy in Peking for the applicant’s extradition. The request was forwarded to the Governor of Macao, who, on 9 July 1999 and in accordance with the relevant domestic legislation, gave leave for the extradition proceedings to continue. The case file was therefore lodged for consideration by Macao Higher Court of Justice (Tribunal Superior de Justiça). In a judgment of 20 August 1999, the Higher Court of Justice authorised the applicant’s extradition. It relied essentially on the fact that the offence of which the applicant was accused was punishable not by death, but at most by life imprisonment. The Chinese Ministry of Foreign Affairs had given an assurance that that penalty would not be imposed on the applicant. On 6 September 1999 the applicant appealed against that decision to the full court of the Higher Court of Justice relying in particular on the fact that Article 266 of the Chinese Criminal Code also contained a cross-reference to Article 264 of that Code, which provided that the death penalty could be imposed for the offences concerned. He also maintained that the assurances given by the Chinese Ministry of Foreign Affairs could not be regarded as credible as they were not binding on the Chinese courts. In a decision of 3 November 1999, the Higher Court of Justice, sitting as a full court, dismissed the appeal and upheld the impugned judgment. By virtue of Article 292 of the Portuguese Constitution and the joint declaration made by Portugal and China on 13 April 1987, Macao is considered a Chinese territory under Portuguese administration until the date appointed for the transfer of sovereignty to China (20 December 1999). Under the terms of Article 2 of the Basic Law of Macao (which was adopted by the Portuguese Parliament, on the proposal of the Macanese legislative assembly, on 17 February 1976, and amended on 14 September 1979, 10 May 1990 and 29 July 1996), Macao is deemed to be a “juristic person of domestic public law”. For the time being and until 20 December 1999, the Portuguese Constitution is applicable to Macao by virtue of the Basic Law. However, laws of the Portuguese Republic are applicable in Macao only if they have been published in the territory’s official gazette. The Governor has primary responsibility for the administration of Macao. He is accountable to the President of the Portuguese Republic. The territory has its own judicial organisation. An appeal used to lie against decisions of the Macao Higher Court of Justice, either to the Supreme Court or, in constitutional cases, to the Constitutional Court of Portugal. However, by Decree no. 118–A/99 of 20 March 1999, the President of the Republic decided, in accordance with the Basic Law, that the Macanese courts would have exclusive jurisdiction for the entire territory from 1 June 1999. The extradition rules applicable in Macao are to be found in Legislative-Decree no. 437/75 of 16 August 1975, which provides for an initial administrative phase after which the Government may give leave for the extradition proceedings to continue. Thereafter it is for the courts to determine whether the request for extradition is lawful. The applicant alleges that his extradition to China would entail a violation of Article 1 of Protocol No. 6 and of Articles 3 and 6 of the Convention.