Extradition - What is extradition?
Autor: Débora Almeida | Publicado: 2009-11-22T10:53:00-08:00

             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.