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Extradition in South America. The case of Brazil

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This paper aims to analyse the main aspects of extradition law in the countries of South America. It also discusses the practice of extradition under Brazilian law, with particular attention paid to the importance of extradition as a mechanism to fight against the phenomenon of corruption in Brazil.

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Notes

  1. Brazil alone has 206.5 million Portuguese-speaking inhabitants (cf. http://www.ibge.gov.br/apps/populacao/projecao, accessed on 15 September 2016).

  2. Source: www.inclusaodigital.gov.br, accessed on 5 September 2016.

  3. Source: http://www.observatoriodoturismo.com.br/pdf/ANUARIO_2015_BASE_2014.pdf, accessed on 15 September 2016.

  4. Venezuela’s entry into Mercosur was accepted by the member states of the bloc. However, more recently there has been resistance to it remaining a member, due to domestic political instability, seen, for example, in the imprisonment of political dissidents by the Venezuelan government (source: O Globo, 14 September 2016, p. 25).

  5. Surinam and Guyana are Ecuadorian countries, whose combined territories account for only 2% (two percent) of the South American continent, and its inhabitants do not constitute even 1% of the total South American population.

  6. Given that the death penalty was eliminated from South America, it is important to note that certain countries still adopt life sentences, as illustrated, for example, by Article 6 of the Argentinian Criminal Code.

  7. Brazilian Parliament is currently ruling on a Foreigner Law designed to update different legal regulations, among these the right to extradition. There is Bill No. 5.655/2009, under analysis by the House of Representatives Plenary Session (see http://www.camara.gov.br/proposicoes, accessed on 7 September 2016).

  8. About the first characteristic, it is noted that asylum may only be granted ‘in urgent cases’ and for ‘only the strictly crucial amount of time’ for the asylee to leave the country with guarantees granted by the government of the territorial State, ‘to the end that his or her life, liberty, or personal integrity may not be endangered, or that the asylee’s safety is ensured in some other way.’ (See Article 5 of the OAS Convention on Diplomatic Asylum.) About the second characteristic, Celso D. de Albuquerque Mello revealed that diplomatic asylum gradually disappeared within the global sphere due to the suppression of the jus quarteriorum and humanisation of sentences. In this sense, in the 19th and 20th centuries, the European continent still had cases of diplomatic asylum for political criminals, although they were sporadic and took place under the protest of governments in countries where there was a diplomatic mission. Such characteristics meant that Europe does not recognise the rules of diplomatic asylum and only tolerated it in certain cases. (Mello [8], p. 1024.)

  9. In this sense, as regards the North American invasion of Panama in December 1989 under the pretext of the ‘defense of democracy and human rights’ in that country, the then President Manuel Noriega, who had been accused of ‘drug trafficking’ by the George Bush Administration, sought diplomatic asylum at the Vatican Embassy in Panama City. The US army then proceeded to apply unrelenting psychological pressure against that diplomatic legation, incessantly playing very loud rock and roll music, day and night, until Noriega surrendered in January 1990.

  10. See Celso D. de Albuquerque Mello: ‘Our conclusion is that diplomatic asylum is only recognised as a right among Latin American countries. Nevertheless, this does not mean that the other countries also do not practice diplomatic asylum, but that they do this sporadically and they do not recognise the aspect of the rule as part of the International Law. As part of this orientation, Brazil granted diplomatic asylum in Portugal countless times, Latin American countries practised it during the Spanish civil war, European countries have exercised it in America, and even the United States has practised it in Europe. This practice alone did not become a custom and it is designed to protect, in certain cases, the politically persecuted.’ Mello [8], p. 1025.

  11. Bassiouni considers the expression aut dedere aut judicare to be the most appropriate, since the commitment that countries must assume in the concert of nations is to judge the event that was engaged in by the indicted, either absolving or sentencing him or her. Bassiouni [1], pp. 333–385.

  12. As for Uruguay, due to the silence of the Constitution and Criminal Code (see Articles 13 and 14), the ‘majority of the treaties in force over recent decades allow for the extradition of nationals.’ (In www.oas.org, accessed on 5 September 2016.)

  13. Article 35. […] Colombians by birth may be extradited for crimes committed abroad, which are thereby considered in Colombian criminal law.

  14. As seen below, the only initiative in this sense in South America appears to be the Mercosur Arrest Warrant.

  15. See Article 14 of Argentinian Law, and Article 448 of Chilean Law.

  16. See Article 83, of Brazilian Law and Article 399 of Venezuelan Law and Article 12 of Ecuadorian Law. With regard to Brazil, it is important to emphasise specifically the breaking from this model due to the constitutional innovation of the extradition of naturalised individuals due to drug trafficking, as discussed below.

  17. See Article 447 of the Chilean Criminal Process.

  18. Based on the bill currently being ruled on by Brazilian Parliament, closed prison may be replaced with a halfway house or house arrest, or the extradited person may even remain free while awaiting trial, granted that he or she has a regular status in Brazil and his or her history and circumstances surrounding the case allow for such. Under this hypothesis, the travel document (passport) will be withheld until the final extradition ruling (r.e. http://www.camara.gov.br/proposicoes, accessed on 7 September 2016).

  19. Article 27, of the Mercosur Extradition Treaty: ‘The requested Party State shall grant extradition if the person to be extradited, with due legal assistance and before the judicial authority of the requested Party State, declares its express consent to deliver to the requesting Party State, after being informed of its right to a formal extradition and protecting proceeding that said right covers.’ Article XIII, of the Extradition Treaty with Portugal: ‘1. The individual detains for extradition may declare that he or she consents to being immediately delivered to the requesting Party and that he or she waives the judicial extradition process after he or she is advised that he or she has a right to this process.’ Article 19, of the Extradition Convention among the Community of Portuguese-speaking Countries: ‘The requested State may grant extradition if the defendant, with due legal assistance and before the judicial authority of the Requested Party State, declares its express consent to deliver to the requesting Party State, after being informed of its right to a formal extradition and protecting proceeding that said right covers.’

  20. In this sense, Law Project No. 5.655/2009, in process at the Brazilian Parliament: ‘Article 130. If the extradited individual, assisted by an Prosecutor and advised that he or she has the right to a judicial extradition proceeding, declares that he or she consents to his or her immediate handover to the requesting State, the request, after being approved by the Prosecutor General of the Republic within the period of five days, shall be decided solely by the reporting judge.’ (Cf. http://www.camara.gov.br/proposicoes, accessed September 7, 2016.)

  21. Cf. Ministério da Justiça [9], p. 38.

  22. Article 28. During any stage of the proceedings, the plaintiff may provide his or her free and express consent to be extradited. The judge will decide without further analysis.

  23. Cf. Lessa [5], p. 156.

  24. Cf. Souza [12], p. 34.

  25. Cf. http://www.justica.gov.br/sua-protecao/cooperacao-internacional/extradicao/arquivos/manualextradicao.pdf, accessed on 5 September 2016.

  26. Cf. http://dai-mre.serpro.gov.br/atos-internacionais/multilaterais/acordo-sobre-mandado-mercosul-de-captura-e-procedimentos-de-entrega-entre-os-estados-partes-do-mercosul-e-estados-associados-dec-48-10/, accessed on 6 September 2016.

  27. Incidentally, the words of Luis Jiménez de Asúa are also considered pertinent: ‘Los delitos de terrorismo, o más brevemente el terrorismo, como se acostumbra designarlos en los Congresos y conferencias internacionales, no contituyen una figura homogénea ni caracterizada por fines altruistas ulteriores, sino por el medio ocasionado a grandes estragos, por la víctima, puede ser un magnate o personaje, o, en contrapartida, personas desconocidas que accidentalmente se hallanem medios de transportes, plazas, calles, etc., y por el inmediato fin de causar intimadición pública. En verdad la figura se ha construido con fines de limitar la benignidad del trato que se otorga internacionalmente a los delitos políticos.’ Jiménez de Asúa [4], p. 185.

  28. The Brazilian ports and borders were opened to subjects of ‘friendly nations’ in 1808, with the arrival of the King of Portugal, his family and his court, who left Portugal after the invasion by the armies of Napoleon Bonaparte. Before that date, the presence of foreigners in Brazil and exit of ‘free’ Brazilians was rigorously controlled, since Portugal feared that, due to the interests awakened by our wealth (gold, precious stones, noble woods, sugarcane, etc.), it could end up losing part or all of our territory. This same reason lead to countless battles in colonial Brazil, basically against the Spaniards, French and Dutch. As for slaves, its worthy of note that the atrocious slavery regime was abolished quite late in Brazil, in 1888. See Souza [14], p. 150.

  29. In 1822, Brazil became a sovereign state, when the proclaimed Emperor—Dom Pedro I, son of the King of Portugal—Dom João VI approved our first Constitution in 1824. The first reference to extradition in the country is in Article 8 of the treaty signed with France, in 1826 with the following content: ‘Individuals accused of the crimes of high treason, falsehood, and the creation counterfeit currency or money in the States of one of the High Contracting Parties, shall not be allowed, nor shall they receive protection in the States of another. And in order to ensure this ruling has the most complete execution, each one of the two Sovereign Nations are required to deport the accused individuals from their respective States, as soon as the other State so requires.’ (Legal Charter from 6 June 6 1826. Government Acts. National Library. Apud Souza [11], p. 55.)

  30. Approximately 8.5 million square kilometres.

  31. The Brazilian territory borders nine South American countries: Uruguay, Argentina, Paraguay, Bolivia, Peru, Colombia, Venezuela, Guyana and Surinam, as well as the French Overseas Region of Guyana, along an extension of approximately 17,000 kilometres.

  32. The Brazilian cost extends from the North Hemisphere, nearly in the Caribbean, until near the Prata Basin (Argentina-Uruguay), as is our ‘maritime frontier’ that extends more than 7,000 kilometres.

  33. Brazil was the destination of millions of immigrants, particularly the Portuguese, Spanish, Italians, German, Polish, Japanese, Syrian-Lebanese, and more recently, Chinese, Koreans, Bolivians, etc.

  34. According to data from the Ministry of Tourism, between 1998 and 2002, some 24 million tourists passed through Brazil. Embratur [2], p. 20.

  35. Habeas Corpus No. 67.621—Reporting Judge Min. Carlos Madeira, ruled on 10/19/89, \(in\) Regional Court RTJ 135/96. In the same sense, the following attachment: ‘Constitutional. Criminal. Extradition. ‘Habeas Corpus.’ Naturalised Brazilian. See Art. 5, LI. Brazilian nationality obtained through naturalization granted after practicing the crime attributed to the extradited person. Case in which extradition may be granted. See Article 5, LI.’ (Habeas Corpus No. 68.198—Reporting Judge Min. Carlos Velloso, published in DJ, from 9/14/90.)

  36. Extradition No. 688.—Reporting Judge Min. Celso de Mello. Pub. DJ, from 08/22/97.

  37. In the same sense, the Bill being ruled on by the Brazilian Parliament, in its Art. 123, Sect. 2, states the following: ‘The Federal Supreme Court may opt not to consider as political crimes assassination attempts against Heads of State or any authorities, as well as acts of terrorism, sabotage, the kidnapping of individuals and hate speech.’ (Cf. http://www.camara.gov.br/proposicoes, accessed September 7, 2016.)

  38. Moraes [10], p. 89.

  39. Cf. Souza [13], p. 26.

  40. Lima [6].

  41. See Lima [7].

  42. See Fellet [3].

  43. More information about the Lava-Jato (‘Carwash’) case may be obtained on the official page of the Brazilian Prosecutor General: http://lavajato.mpf.mp.br.

  44. Cf. Corte Suprema de Portugal anula extradição de operador da Petrobras. inhttp://noticias.uol.com.br/ultimas-noticias/agencia-estado/2016/09/23/corte-suprema-de-portugal-anula-extradicao-de-operador-da-petrobras.htm, accessed September 2016.

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Souza, A.d.B.G. Extradition in South America. The case of Brazil. ERA Forum 19, 313–337 (2019). https://doi.org/10.1007/s12027-018-0536-1

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