domingo, 22 de novembro de 2009

Extradition - What is extradition?

Extradition is and act of international cooperation consisting in delivering a person, accused or condemned for one or more crimes, to the country claiming him/her. Extradition should be required based on reciprocity of treatment for analog cases.

Is the petition of extradition limited to the countries Brazil has a Treaty?

No. It may be required by any country and to any country. When there is no Treaty, the request should be based on Law 6.815, of August 19, 1980 (Foreigner’s Statute).

With which countries has Brazil an extradition agreement?

Currently, Brazil has Extradition Treaties in force celebrated with 18 (eighteen) countries:

Argentina - executed on November 15, 1961 and enacted by Statute nº 62.979;

Australia - executed on August 22, 1994 and enacted by Statute nº 2.010, of September 25, 1996;

Belgium - executed on May 6, 1953 and enacted by Statute nº 41.909, of July 29, 1957;

Bolivia - executed on February 25,1938 and enacted by Statute nº 9.920, of July 8, 1942;

Chile - executed on November 8, 1935 and enacted by Statute nº 1.888, of August 17, 1937;

Colombia - executed on December 28, 1938 and enacted by Statute nº 6.330, of September 25, 1940;

Ecuador - executed on March 4, 1937 and enacted by Statute nº 2.950, of August 8, 1938;

South Korea - executed on September 1st, 1995 and enacted by Statute nº 4.152 of March 7, 2002;

Spain - executed on February 2, 1988 and enacted by Statute nº 99.340, of June 22, 1990;

United States - executed on January 13, 1961 and enacted by Statute nº 55.750, of February 11, 1965;

Italy - executed on October 17, 1989 and enacted by Statute nº 863, of July 9, 1993;

Mexico - executed on December 28, 1933 and enacted by Statute nº 2.535, of March 22, 1938;

Paraguay - executed on February 24, 1922 and enacted by Statute nº 16.925, of May 27, 1925;

Peru - executed on February 13, 1919 and enacted by Statute nº 15.506, of May 31, 1922;

Portugal - executed on May 7, 1991 and enacted by Statute nº 1.325, of December 2, 1994;

United Kingdom - executed on July 18, 1995 and enacted by Statute nº 2.347, of October 10, 1997;

Switzerland - executed on July 23, 1932 and enacted by Statute nº23.997, of March 13, 1934;

Uruguay - executed on December 27, 1916 and enacted by Statute nº 13.414, of January 15, 1919;

Venezuela - executed on December 7, 1938 and enacted by Statute nº 5.362, of March 12, 1940.

Currently, there are bills of extradition Treaties with Canada, France, Russia, Lebanon, and the member states of the MERCOSUL pending for examination at the National Congress.

The Extradition Treaty executed between the countries of the MERCOSUL and associated countries (Bolivia and Chile) has been already ratified by Brazil through Statute nº 35, 2002, however, to be in force internationally, the ratification of at least two member states of the Mercosul is needed, as well as one associated country. Until this date, only Brazil and Uruguay have ratified the Agreement.

Extradition- Which are the cases when Brazil does not deliver the extradited party?

Brazil should not deliver the extradited party to the requiring State without this latest assuming the following commitments, set forth on art. 91 of Law 6.815/80: the extradited party should not be arrested nor processed for any facts previous to the petition; to compute the prison time that, in Brazil, is imposed by virtue of extradition; to commute into a penalty depriving freedom the corporal or death penalty, safe, as to the latest, the cases where the Brazilian law allows its application; the extradited party should not be delivered, without Brazil consent, to other State that claims him/her; no political reason should be considered as to aggravate the penalty.

The Supreme Court admits the extradition of individuals condemned in the requiring country to the penalty of life imprisonment, except if its inadmissibility is expressly set forth in a Treaty.

Are Brazilians extradited by Brazil?

No. According to art. 5º, letter LI of the Federal Constitution, under no hypothesis the extradition of natural Brazilians should be admitted. For naturalized Brazilians, guaranteeing extradition may be granted, if the delicts supposedly performed abroad were performed before their naturalization, or proven involvement with illicit drug traffic, according to the Brazilian law.

As a consequence of that constitutional disposition, Brazil most of the times should not be successful while applying for the extradition of a national of the required country, due to the impossibility of offering reciprocity in treatment.

However, in this case, the Judiciary Power may route the pertinent documentation to the Ministry of Justice, that should formalize to the required country, by diplomatic means, the petition of inception of an accusatory procedure in order that the runaway is sued and judged in his/her country of origin.

In addition to the prohibition of extraditing natural Brazilian, which are the other cases of inadmissibility of extradition, as per the Brazilian legislation?

According to arts. 77 and 78 of the Foreigner’s Statute, extradition should not be granted when: the fact motivating the petition is not considered as a crime in Brazil; the Brazilian law imposes to the crime a prison penalty equal or under one year; the extradited party is responding to a process for which he/she was already condemned ort absolved in Brazil, for the same fact the petition is based on; punishment is extinct by prescription of the punishing pretension; the fact constitutes a political crime; the extradited party should answer, in the requiring State, at the Court of Exception; the crime is not committed in the territory of the requiring State.

Eventually, the extradition of individuals condemned by Brazilian justice may only be required to another country if the penalty is initially served in closed regime, in the terms of the Brazilian legislation.

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