The special TADA court on Thursday pronounced the sentences for six of the persons convicted in June this year for their roles in the 1993 serial blasts. Among the six, Abu Salem was given a sentence of life imprisonment, having been convicted for conspiracy to commit terror offences under the old Terrorist and Disruptive Activities (Prevention) Act, for his role in transporting weapons from Gujarat to Mumbai.
The prosecution wanted to ask for the death penalty in this case, and public sentiment in favour of such a sentence would have been quite high. However, it was not possible for the court to give such a sentence to Salem because of the terms of his extradition to India from Portugal.
India-Portugal Extradition Agreement
In 2005, a Portuguese court agreed to the extradition of Abu Salem to India to stand trial for his role in the 1993 blasts case, after negotiations based on a UN convention for cooperation in terror investigations between countries.
As India and Portugal had no formal extradition treaty, the agreement reached between Indian and Portuguese authorities reflected in that court order were to be treated as an extradition treaty for the purposes of the Indian Extradition Act 1962.
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Portugal’s Commitments Against the Death Penalty
The death penalty has been abolished in the European Union for some time now, under protocol 4 of the European Convention on Human Rights (the ECHR). The European courts had subsequently interpreted this position to also mean that countries bound by the ECHR (including Portugal) cannot extradite any person (no matter their nationality) to a country where there is a serious risk that he or she would be subjected to the death penalty.
This has subsequently been crystallised as Article 19 of the EU Charter of Fundamental Rights, 2000.
Back in 2005, therefore, Portugal could not allow Abu Salem to be extradited to India if they believed there was a serious risk that he would be sentenced to death by the Indian courts, as this would violate their own obligations. This became a provision in the extradition agreement between India and Portugal, whereby India gave an undertaking that it would not give such a sentence to Salem.
Was There Any Possibility of an Enhanced Sentence?
Though extradition agreement included a condition that Salem couldn’t be given the death penalty, technically such a condition could not prohibit an Indian court from giving such a sentence (because of independence of the judiciary). To make up for this, the Indian government included a commitment in the agreement that they would, if such a sentence were imposed, resort to all legal measures to restrict it.
Portugal has been quite proactive in ensuring that this condition is respected by India, with a Portuguese court at one point cancelling Salem’s extradition because some of the charges filed against him could have increased the likelihood of capital punishment if convicted. The TADA court had to agree to drop those charges against Salem in 2013 to resolve the matter.
As a result, though the CBI prosecution counsel Deepak Salvi may have wanted to ask for a death sentence for Salem, such a sentence would have created a massive diplomatic incident, with Salem having the right to approach European courts to get Portugal to act on his behalf, and move the Supreme Court.
Portugal would have also had had grounds to approach the International Court of Justice for breach of a treaty, if the Indian government had not taken steps to commute this sentence.
In the event, a life sentence (which was what Salvi finally asked for in July) is the maximum that could have been awarded to Salem. In fact, even this is slightly controversial as the extradition agreement in 2005 reportedly also specified that the maximum term of imprisonment for Salem would be 25 years.
However, unlike with capital punishment, Portugal is not prohibited from extraditing Salem to a country where he could be given life imprisonment, and so this would not be a violation of their obligations. This should mean that they are less likely to pursue the matter, especially if India can assure them that they are not mistreating Salem.
We can still probably expect a case to be filed by Salem with the European courts against this sentence – he has already challenged the fairness of his trial there.
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