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OEA/Ser.G
PERMANENT COUNCIL OF THE ORGANIZATION OF AMERICAN STATES
GE/REMJA/doc.33/99 add. 1
9 September 1999
Original: SpanishSpecial Group to Implement the Recommendations of the Meetings of Ministers of Justice or of Ministers or Attorneys General of the Americas
REQUIREMENTS FOR EXTRADITION:
(Submitted in fulfillment of the recommendations by the Second Meeting of Ministers of Justice or of Ministers or Attorneys General of the Americas)
Brazil
PERMANENT MISSION OF BRAZIL TO THE ORGANIZATION OF AMERICAN STATES
No. 238
The Permanent Mission of Brazil presents its compliments to the General Secretariat of the Organization of American States and has the honor to refer to the Note from the Secretariat for Legal Affairs concerning the Conclusions and Recommendations contained in the Final Report of the Second Meeting of Ministers of Justice or of Ministers or Attorneys General of the Americas (REMJA-II/doc.21/99 rev. 1).
In response to this note, I am enclosing the list of Brazilian experts in cybernetic crimes and information regarding the requirements for extradition, furnished by the Ministry of Justice.
The Permanent Mission of Brazil avails itself of this opportunity to reiterate to the General Secretariat the expressions of its highest consideration.
Washington, August 25, 1999
NOTE: The matter pertaining to the List of National Experts in Cybernetic Crimes, mentioned in this note, was published in GE/REMJA/doc.38/99.
MINISTRY OF JUSTICE OF BRAZIL
REQUIREMENTS FOR EXTRADITION
The Authority to legislate on the following subjects is reserved to the Union: XV. Emigration and immigration; the entry, extradition, and expulsion of aliens. (Brazilian Constitution, Art. 22, XV).
No Brazilian shall be extradited; however, a naturalized Brazilian may be extradited for an ordinary crime perpetrated prior to naturalization, or for proven involvement in illicit traffic in narcotics and similar drugs, pursuant to law. (Brazilian Constitution, Art. 5, LI)
Extradition of an alien shall not be granted on the basis of a political crime or crime of opinion. (Brazilian Constitution, Art. 5, LII)
Extradition may be granted when the requesting Government bases its request on a Treaty, or when it promises reciprocity to Brazil. [Art. 76 of Law No. 6815 of August 19, 1980, (defining the legal status of aliens in Brazil, creating the National Immigration Council, and making other provisions)].
Extradition shall not be granted when: i) the subject is Brazilian, unless acquisition of that nationality occurred after the event that inspired the request (See Art. 5, LI, of the Constitution); ii) the event that inspired the request was not considered a crime in Brazil or in the requesting state; iii) Brazil has jurisdiction, according to its laws, to prosecute the crime of which the person sought is accused; iv) the penalty imposed by Brazilian law is imprisonment for one year or less; v) the person sought is a defendant in a proceeding or has already been convicted or found innocent in Brazil for the same facts on which the petition is based; vi) the crime is statute-barred under Brazilian law or that of the requesting State; vii) the act constitutes a political crime (See Art. 5, LII, of the Constitution); viii) the person whose extradition is sought would have to appear in the requesting state before a special tribunal or court. (Law No. 6815 of August 19, 1980, Art. 77)
The exception in section VII will not prevent extradition when the act is primarily a violation of ordinary criminal law, or when the ordinary crime connected to the political crime constitutes the principal act. (Law No. 6815 of August 19, 1980, Art. 77, §1)
The Federal Supreme Court has exclusive authority to evaluate the nature of the offense. (Law No. 6815 of August 19, 1980, Art. 77, §2)
The Federal Supreme Court may decide not to consider as political crimes attacks against chiefs of state or other officials, as well as acts of anarchism, terrorism, sabotage, kidnapping, or acts that involve propaganda in favor of war or violent methods of subverting the political or social order. (Law No. 6815 of August 19, 1980, Art. 77, §3)
The following are conditions for granting of extradition: i) the crime was committed in the territory of the requesting State, or the criminal laws of that state are applicable to the person whose extradition is sought; and ii) there exists a final sentence of imprisonment, or the imprisonment of the person sought has been authorized by a judge, tribunal, or official of the requesting State, except as provided in Article 82. (Law No. 6815 of August 19, 1980, Art. 78).
When more than one state requests extradition of the same person for the same act, preference will be given to the request from the state in whose territory the offense was committed. (Law No. 6815 of August 19, 1980, Art. 79, head paragraph)
If the request deals with several crimes, the following preferences shall apply, in succession: i) the requesting State in whose territory the crime was committed that, under Brazilian law, is the most serious crime; ii) the state that first requested surrender of the person sought, if the gravity of the crimes is identical; and iii) the State of origin, or, if none is involved, the State of domicile of the person whose extradition is sought, if the requests are simultaneous. (Law No. 6815 of August 19, 1980, Art. 79, §1)
In cases not elsewhere provided for, the Brazilian Government will decide. (Law No. 6815 of August 19, 1980, Art. 79, §2)
If a treaty exists with any of the requesting states, its rules shall prevail as regards the preference that is the subject of this article. (Law No. 6815 of August 19, 1980, Art. 79, § 3)
Extradition shall be requested through diplomatic channels or, in the absence of a diplomatic agent of the requesting state, directly from government to government. The request must be supported by an authenticated copy or transcript of the sentence that convicted the individual, the indictment, or the order for preventive detention, issued by a judge or competent authority. That document, as well as any other that may be attached to the request, shall contain precise indications as to the place, date, nature, and circumstances of the criminal act, the identity of the person whose extradition is being sought, and, also, copies of the texts of the laws on the crime, the punishment, and the time limit on prosecution. (Law No. 6815 of August 19, 1980, Art. 80)
Forwarding of the request through the diplomatic channel confers authenticity on the documents. (Law No. 6815 of August 19, 1980, Art. 80, § 1)
In the absence of a treaty that provides otherwise, the documents mentioned in this article shall be accompanied by a Portuguese translation performed officially in the requesting state. (Law No. 6815 of August 19, 1980, Art. 80, §2)
In urgent cases, preventive detention of the person sought may be ordered provided it is requested in legally suitable terms, regardless of the means of communication, by a competent authority or diplomatic or consular agent of the requesting state. (Law No. 6815 of August 19, 1980, Art. 82, head paragraph)
The request, which shall describe the crime committed, must be supported by a judgment of conviction, record of flagrante delicto, warrant of arrest, or the flight of the indicted person. (Law No. 6815 of August 19, 1980, Art. 82, §1)
After the person has been arrested, the requesting state shall formalize the request within ninety (90) days, pursuant to Article 80. (Law No. 6815 of August 19, 1980, Art. 82, §2)
A person imprisoned on the basis of this article shall not be held longer than the interval indicated in the preceding paragraph, nor shall a new request based on the same facts be accepted unless extradition has been formally requested. (Law No. 6815 of August 19, 1980, Art. 82, §3)
No extradition shall be granted until the Federal Supreme Court, in plenary session, has ruled on its legality and appropriateness, and the Court’s decision cannot be appealed. (Law No. 6815 of August 19, 1980, Art. 83)
After the person sought has been imprisoned (Article 81), the request shall be forwarded to the Federal Supreme Court (Law No. 6815 of August 19, 1980, Art. 84, head paragraph).
The imprisonment shall continue until the Federal Supreme Court has issued a final decision. Neither parole, nor house arrest, nor commitment in a halfway house shall be permitted. (Law No. 6815 of August 19, 1980, Art. 84, sole paragraph)
After extradition has been granted, notification of this fact shall be given through the Brazilian Ministry of External Relations to the Diplomatic Mission of the requesting state which must act within sixty (60) days of notification to remove the person being extradited from Brazilian territory. (Law No. 6815 of August 19, 1980, Art. 86)
If the requesting state does not act within the interval stipulated in the preceding article to remove the extradited person from Brazilian territory, said person shall be set at liberty, without prejudice to his being subject to expulsion, if recommended in light of the reason for the extradition. (Law No. 6815 of August 19, 1980, Art. 87)
If extradition is denied, no new request based on the same facts will be accepted. (Law No. 6815 of August 19, 1980, Art. 88)
When the person whose extradition is being sought is being proceeded against or has been convicted in Brazil of a crime punishable by imprisonment, the extradition shall not be executed until after the proceedings have ended or the sentence served, except, however, as provided in Article 67. (Law No. 6815 of August 19, 1980, Art. 89, head paragraph).
Provided it is in the national interest to do so, the alien may be expelled even if prosecution is in progress or conviction has occurred. (Law No. 6815 of August 19, 1980, Art. 67).
Surrender of the extradited person shall also be postponed if implementation of the measure would pose a threat to his life owing to serious illness corroborated by an official medical report. (Law No. 6815 of August 19, 1980, Art. 89, sole paragraph)
The Government shall surrender the person sought even if he is involved in a lawsuit or has been convicted of a misdemeanor. (Law No. 6815 of August 19, 1980, Art. 90)
The surrender shall not be carried out unless the requesting State assumes a commitment: i) not to imprison or prosecute the extradited person for acts predating the request; ii) - to compute the length of imprisonment in Brazil that was imposed by virtue of the extradition; iii) to commute corporeal punishment or a death sentence to imprisonment except, as regards the latter, those cases in which Brazilian law permits its application;/ iv) not to surrender the extradited person to another State that claims him, without the consent of Brazil; v) not to consider any political motive in order to aggravate the penalty. (Law No. 6815 of August 19, 1980, Art. 91)
Surrender of the extradited person, according to Brazilian laws and in observance of the rights of third parties, shall include the objects and instruments of the crime found in his possession. (Law No. 6815 of August 19, 1980, Art. 92, head paragraph)
The objects and instruments referred to in this article may be surrendered separately from the surrender of the extradited person. (Law No. 6815 of August 19, 1980, Art. 92, sole paragraph)
An extradited person who, after being surrendered to the requesting State, escapes the action of Justice and takes refuge in, or transits Brazil, shall be detained in response to a request made directly through the diplomatic channel, and surrendered again without further formalities. (Law No. 6815 of August 19, 1980, Art. 93)
Unless opposed for reasons of public order, the Ministry of Justice may permit the transit in Brazilian territory of persons extradited by foreign states, as well as custody thereof, upon exhibition of documents attesting to the granting of the measure. (Law No. 6815 of August 19, 1980, Art. 94).
August 5, 1999
Roberto Chacon de Albuquerque
Ministry of Justice
Office of Legal Counsel
[email protected]
