US embassy cable - 04BRUSSELS5255

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limitations superseded the conclusion of the current 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