Global Investigations Review - The law and practice of international investigations

Extradition

Last verified on Wednesday 19th June 2019

Brazil

Clarissa Oliveira and Giovana Baptista
Stocche Forbes Advogados
  1. 1.

    Are extradition proceedings regulated by domestic legislation, treaties or both?

  2. Extradition proceedings in Brazil are regulated by both domestic legislation and treaties. The general rules are described in Law No. 13.445/2017 (http://www.planalto.gov.br/ccivil_03/_ato2015-2018/2017/lei/l13445.htm), known as the Migration Law in connection with principles set forth in the Brazilian Federal Constitution (http://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm) and are applied case by case, in consideration of the treaty with the other country involved.

  3. 2.

    Is there a central register of extradition treaties that your state has entered into?

  4. 3.

    Do special extradition arrangements apply to certain foreign states, for example states that are geographically proximate, or politically, legally or economically closely linked?

  5. The Extradition Agreement of Mercosur is a multilateral treaty on extradition signed by Brazil, Argentina, Uruguay and Paraguay (http://www.planalto.gov.br/ccivil_03/_Ato2004-2006/2004/Decreto/D4975.htm) which came into effect in 2004. This treaty establishes several conditions that are much more specific than the content of other arrangements signed between Brazil and other countries. These specifics relate to penalties that would not be subject to extradition, crimes that would be subject to extradition, and crimes that would not be subject to an extradition preceding, among others features.

    Besides the Mercosur, there is are significant differences in the bilateral agreement between Brazil and Portugal because of the history between the two countries (Brazil was a colony of Portugal until 1822). The main difference is that Portuguese residents in Brazil receive the same protection as Brazilian nationals, which is not the case for residents from other countries.

  6. 4.

    Is extradition possible to states that have no bilateral or multilateral extradition treaty with your state if they are party to an international convention?

  7. The Migration Law establishes that extradition is possible for countries that have a treaty or are part of an ad hoc arrangement (article 84, paragraph 2). Therefore, extradition is not possible for countries that are solely part of an international convention.

  8. 5.

    Is extradition possible to states that are not extradition treaty partners as an ad hoc arrangement?

  9. Extradition is possible as part of an ad hoc arrangement if there is a promise of reciprocity from the requesting state. This agreement entails that the extradition will only be allowed if the requesting state makes a formal promise of giving the same treatment that it receives from Brazil. 

    In addition, note that only individuals who have power to speak for the state (such as the Chief of State, the Minister of External Relations, the Prime Minister) can offer a promise of reciprocity (STF, Extradition No. 646). 

    It is at the discretion of the executive power whether or not to accept the promise of reciprocity; therefore the judiciary’s opinion is not taken into consideration during this phase. 

    According to Brazilian case law, the promise of reciprocity, as with a bilateral treaty, constitutes a formal source of extradition law (STF, Extradition No. 769). In this situation, the extradition procedure will usually follow the general rules and conditions set forth in the Migration Law unless a previous agreement between the countries provides otherwise.

  10. 6.

    For which offences is extradition from your state allowed?

  11. There is no list of offences for which extradition is allowed in Brazilian legislation. Some bilateral treaties do set out an enumerative list of crimes, such as the treaty between Brazil and the United States. It is more usual for treaties to specify crimes of a certain level of gravity (ie, those that justify following all the formalities, the expense and the time taken for a judicial decision to be given). 

    Even though it does not include a list of offences, the Migration Law does provide for some limitations relating to certain types of offences. 

    One of the limitations is that extradition will not be allowed when Brazilian law establishes a penalty of imprisonment for less than two years for a crime (Migration Law, article 82, IV). It is important that each offence is analysed separately. For example, if an extradition request attributes three different crimes to an individual, each of which is subject to  a penalty of imprisonment for less than two years, the individual cannot be extradited. 

    Extradition also will not be allowed when the offence constitutes a political or opinion crime. One exception to this rule is if the political or opinion crime is related to a common crime. If the main conduct is a common crime, even if it is connected to a political crime, extradition can be allowed by the STF. 

    The courts can also allow the extradition of an individual who has committed a political or opinion crime if it was against a chief of state or other authority, or if the conduct is a crime against humanity, a war crime, genocide or terrorism (Migration Law, article 82, paragraphs 1 and 4).          

    There are other situations when extradition will not be allowed – these are addressed in later questions. 

  12. 7.

    Is there a requirement for double (dual) criminality? How is this assessed?

  13. Yes. The Migration Law establishes that extradition will not be allowed when the offence that gives rise to the request is not considered a crime in Brazil (article 82, II). 

    In some instances, there is not an exact equivalent of the crime in both legislations. According to Brazilian case law, it is necessary to have a similarity between both crimes. What the court will analyse are the elements that constitute the crime in each legislation, rather than how the unlawful conduct is described or named (Francisco Xavier da Silva Guimaraes, Medidas compulsórias: a deportação, a expulsão e a extradição, Rio de Janeiro: Forense, 1994).  

    When a request from a requesting state includes multiple conducts, of which only some are considered a crime according to Brazilian legislation, it is possible for the STF to partially defer the request. In these circumstances,  only the facts that constitute a crime in Brazil will be accepted.

  14. 8.

    How would your state deal with a request that includes an offence for which extraterritorial jurisdiction is claimed?

  15. Article 83 of the Migration Law establishes that extradition will only be allowed if the crime was committed in the territory of the requesting state or if the criminal law of the requesting state is applicable to the individual. Therefore, if a request includes an offence for which extraterritorial jurisdiction is claimed, the state will have to demonstrate that its internal criminal law can be applied to the individual.

  16. 9.

    What must be included as part of a valid extradition request made by the foreign state?

  17. An extradition request must include (i) an original copy of the sentence or other criminal decision, (ii) precise details of the location, date, nature and circumstances of the illegal acts, (iii) the identity of the individual and (iv) a copy of the legal texts regarding the crime, competence, penalty and the statute of limitation (Migration Law, article 88, paragraph 3). Any relevant treaty may require other documents to be included.

    If an extradition request is refused because of formal errors (eg, a lack of documents) the requesting state may submit a new request with those errors rectified (Migration Law, article 89, sole paragraph).

    Note that the STF will not analyse the merits of the criminal lawsuit or investigation being conducted by the requesting authority. It only requires sufficient evidence to establish whether the conditions set forth in article 83 of the Migration Law are met and that the circumstances of the case are not such that they are forbidden under article 82 of the Migration law. 

    The court or the attorney general may ask for further evidence to be produced. The STF also interviews the individual as part of the process of compiling preliminary evidence (Migration Law, article 91). 

  18. 10.

    What are the stages of the extradition process?

  19. The extradition process in Brazil is comprised of three stages, classified as a combined process since it involves both administrative and judicial stages. 

    The first stage is administrative, in which the request is presented to the executive power, normally through a diplomatic channel, such as the Ministry of External Relations. Next, the request is sent to the Ministry of Justice, which is responsible for making the first analysis. and shall decide whether the request has all the formal elements to be admitted (Migration Law, article 88, paragraph 1). 

    If the requesting state does not have an extradition treaty with Brazil, during this stage the executive power will assess whether it wishes to accept a promise of reciprocity, as discussed in question 5. 

    If a request is rejected at this first stage, the procedure will be terminated. The requesting state cannot appeal this decision. However, if a request is rejected because of formal errors, a new request can be filed. 

    After accepting a request, the Ministry of Justice will forward the case to the STF, as the second stage of the process (Migration Law, article 89; Brazilian Constitution, article 102, I, g). The Migration Law establishes clearly that no extradition will be allowed without an assessment by the STF (Migration Law, article 90). 

    After it has been forwarded to the STF, a rapporteur is assigned to the case. The rapporteur will schedule an interview with the individual and provide a lawyer, if the requested person does not have one. 

    After the interview and when it has acquired all the necessary evidence, the STF will assess the request and decide whether or not to proceed with the extradition from a legal perspective. The Supreme Court usually takes into consideration (i) the identity of the individual, (ii) the nature of the offence and (iii) the legality, provenance and regularity of the request.

    Moreover, the STF will not assess the merits of the case but will only consider those aspects that relate to the extradition.

    Once the STF has made its decision, the case will be returned to the executive power, through the Ministry of Justice – this is the third stage of the process.

    Note in particular that if the STF has denied a request, extradition cannot be allowed by the executive power at this third stage. However, if the STF decides that the extradition is legal, the executive branch has the discretionary power to decide not to extradite the individual (STF, Extradition No. 61). 

  20. 11.

    If an initial political decision is required, what factors can be considered?

  21. As discussed in question 10, the initial stage of the extradition process consists only of an assessment of the formalities by the Ministry of Justice. Usually this stage does not involve a political decision. The Ministry of Justice, representing the executive power, will only check whether the request includes the basic documentation and that the form has been completed correctly.

  22. 12.

    Is provisional arrest, before the extradition request is received, possible?

  23. Brazilian legislation establishes that a provisional arrest is possible, prior to an extradition request being received. 

    Article 84 of the Migration Law establishes that if a case is urgent, the requesting state can solicit a provisional arrest before or at the same time as the formal request for extradition. 

    A request for provisional arrest must contain information regarding the crime and must be well reasoned. The requesting state must also provide documentary proof of the existence of the arrest warrant it issued (Migration Law, article 84, paragraph 1). 

    The provisional arrest can be sent to Interpol in Brazil, to the Ministry of External Relations or to the Ministry of Justice. The Ministry of Justice is responsible for assessing the formal requirements as described in question 11. If these requirements have been met, the Ministry of Justice forwards the request to the competent authority, which will issue the arrest warrant after consulting the attorney general.

    After the arrest, the requesting state has 60 days to formalise the extradition request, unless otherwise defined in a treaty (Migration Law, article 84, paragraph 4). If the request is not submitted in time, the individual will be released (Migration Law, article 84, paragraph 5). 

    A provisional arrest can be extended until the end of the trial (Migration Law, article 84, paragraph 6).

  24. 13.

    Must a domestic arrest warrant be issued or can an Interpol red notice be used to carry out a provisional arrest?

  25. An Interpol red notice can be used as evidence for a request. However, it is necessary also to have a domestic arrest warrant, since it is not possible to carry out a provisional arrest in Brazil without first consulting the attorney general. 

  26. 14.

    What is required to apply for a domestic extradition arrest warrant?

  27. It is important to stress that an arrest is part of the extradition procedure. After the Ministry of Justice accepts an extradition request, the STF has received the case and the attorney general has been consulted, an arrest warrant is issued. 

    Thus, all extradition proceedings that reach the second stage will result in an arrest. Brazilian case law is clear regarding this matter and has established that it is rare for the individual to await trial and not be held in custody (STF, Extradition No. 1.313; STF, Writ of Mandamus No. 90.154; STF, Writ of Mandamus No. 101.833; STF, Writ of Mandamus No. 83.881). 

    Article 86 of the Migration Law points out that the STF, after consulting the attorney general, can authorise an individual to await trial under home arrest or at liberty, subject to the retention of travel documents or other precautionary measures. In reaching such a decision, the court will take into consideration the administrative situation, the criminal background of the individual and the circumstances of the case. 

  28. 15.

    What rights does the requested person have while under arrest?

  29. The Brazilian Federal Constitution establishes that the rights of individuals under arrest must be applied in the same way to both Brazilian nationals and foreigners. 

    The Brazilian Criminal Code and the Law of Criminal Enforcement establish several rights of an individual under arrest, including the right to (i) physical and moral integrity, (ii) adequate food and clothing, (iii) private contact and meetings with a lawyer, (iv) visits by a spouse or partner, family and friends, (v) medical assistance and (vi) a public lawyer, if the individual does not have the means to pay for a lawyer. Brazil is also part of the Geneva Convention Standard Minimum Rules for the Treatment of Prisoners.  

    The Vienna Convention on Diplomatic Relations of 1963, to which Brazil is a party, establishes that a foreigner has the right to consular assistance from his or her country of origin. 

    In addition to the rules described above, Brazilian case law has also held that foreigners arrested in Brazil have the right to communicate by phone with their families and to stay in a facility with other foreigners. 

  30. 16.

    Is bail available in extradition proceedings?

  31. Bail is not available in extradition proceedings. However, it is possible to request alternative precautionary measures, such as electronic anklets or home arrest. 

  32. 17.

    If so, what are the factors that a court will take into account in deciding whether to grant bail?

  33. Bail is not available in extradition proceedings. However, it is possible to replace arrest with another precautionary measure, as pointed out in question 14. 

    STF, after consulting the attorney general, can replace arrest with another precautionary measure. In reaching such a decision, the court will take into consideration the administrative situation, the criminal background of the individual and the circumstances of the case. 

  34. 18.

    Can the court impose conditions when granting bail? What conditions can be, and usually are, imposed?

  35. As stated in question 16, bail is not available in extradition proceedings. However, it is possible for STF to grant alternative precautionary measures, such as electronic anklets or house arrest. 

  36. 19.

      What bars can be raised to resist extradition?

  37. During the first and third stages of the extradition procedure, there are no bars that could be raised to resist extradition, since they involve a discretionary decision by the executive power and do not allow adversarial procedure. 

    The defence of the individual is limited. Possible counterarguments include (i) the individual not being the person that the requesting state is prosecuting abroad, (ii) a formal error in the documentation submitted by the requesting state; (iii) the extradition being illegal. 

    As regards point (iii), the defence can argue that the facts satisfy one of the situations defined by article 82 of the Migration Law. This article is very clear in establishing that extradition will not be allowed if: 

    • the individual is a Brazilian national;
    • the offence that initiates the request is not considered a crime in Brazil or in the requesting state;
    • Brazil is competent, according to its laws, to judge the crime being imputed to the individual; 
    • Brazilian law imposes a penalty of less than two years’ imprisonment for the crime stated in the request; 
    • the individual is responding to a process or has already been convicted or acquitted following a lawsuit in Brazil for the same offences that constitute the extradition request; 
    • the statute of limitation has been reached, without the state being able to pursue the prosecution or enforcethe penalty, according to the law in Brazil or the requesting state; 
    • the offence constitutes a political crime or opinion; 
    • the individual will have to answer in the requesting state before ad hoc tribunal; or
    • the individual has been granted refugee status under the terms of Law No. 9.474/97, or territorial asylum. 

    Also, the defence can argue that the two mandatory conditions under article 83 of the Migration Law are not present. These conditions are: (i) the crime must have been committed in the territory of the requesting state or the criminal law of that state must be applicable to the individual; and (ii) the individual must be the subject of an investigatory procedure or a criminal lawsuit or already have been sentenced with imprisonment by the judicial authorities of the requesting state. 

    As discussed in question 7, article 82 offers protection against double criminality. Extradition can only be allowed if the individual was not or is not being prosecuted in Brazil for the same offence or offences. Even if the individual has already served a sentence, the extradition cannot be allowed, since it would clearly constitute a violation to the principle of ne bis in idem. 

    However, when an individual is being prosecuted in Brazil for an offence other than the one that initiated the request, extradition can be allowed. It is usual in this type of case that the individual is extradited after serving his or her sentence in Brazil. 

    For argument brought by the defence, the burden of proof is on the lawyers. In this context, the defence should present all the evidence to be used in the proceeding instead of requesting the authorities to produce it. In extradition cases, only the STF and the attorney general can request the submission of further evidence. 

  38. 20.

    Does your state extradite its own nationals and residents?

  39. Brazilian nationals cannot be extradited, as stipulated in article 82 of the Migration Law (situations in which extradition is not permitted). Even if the Brazilian national has another nationality, he or she cannot be extradited. 

    The same rule does not apply to Brazilian residents, who can be extradited if the offence or offences in question occurred before residency was granted or if the person is involved in illicit drug dealing (Brazilian Constitution, article 5, LI). 

    Case law under the STF is clear in establishing that its decision will not be influenced by the fact that the resident is married to a Brazilian national or has children who are Brazilian nationals (STF, Binding Precedent No. 421). The only exception to this rule relates to Portuguese nationals residing in Brazil. Owing to the bilateral agreement between Portugal and Brazil, Portuguese nationals who reside in Brazil can only be extradited if it is requested by Portugal, otherwise a requested person will have the same protection as a Brazilian national (Decree No. 70.436/72).

  40. 21.

    Are potential breaches of human rights after extradition considered in the extradition process?

  41. Human rights breaches that may occur following extradition are taken into account when considering an extradition request. According to the Migration Law (article 96), even if all the conditions are met, extradition will not be allowed if the requesting state does not promise that it: 

    • will not submit the individual to imprisonment or other process for an offence that occurred before the extradition request and was not considered as part of the request; 
    • will deduct the time that the individual spent in prison in Brazil during the the extradition procedure from the length of the sentence in the requesting state; 
    • will change any corporal penalty, life imprisonment or death penalty for the penalty of imprisonment, subject to a maximum of 30 years; 
    • will not surrender the individual, without Brazil’s consent, to another state; 
    • will not consider any political motive to aggravate the penalty; or
    • will not submit the individual to torture or any other cruel, inhumane or degrading treatment or penalty. 

    If the state does not commit to following these rules, the main aim of which are to protect human rights, Brazil will not extradite the individual. 

  42. 22.

     Can a person consent to extradition, and what is the procedure? Is consent irrevocable?

  43. The Migration Law establishes that an individual can voluntarily surrender to the state (article 87). For consent to extradition to be accepted, it is necessary that the individual expressly declares his or her will to consent, is assisted by a lawyer and is advised of the right to a fair extradition process, as well as to the protections that the process offers.

    Legislation does not provide for the possibility of consent being revoked. Taking into consideration Brazilian case law, however, it would be possible for the defence to request that consent be revoked, affirming that the right to a defence should prevail. 

  44. 23.

    Is there a speciality protection? How is it provided? Does it apply if a person consents to extradition?

  45. The speciality protection is one method ‘by which parties to an extradition treaty control and insure the integrity of the extradition process’ (Christopher J Morvillo, Individual Rights and the Doctrine of Speciality: The Deteriorations of the United States v. Rauscher, Fordham Internal Law Journal. Available at https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1293&context=ilj). This doctrine establishes that the requesting state should prosecute the individual only for the offences for which extradition was granted. 

    This rule is expressly established in article 96, I of the Migration Law and is applicable to all situations that may arise, even if a person has consented to extradition. 

  46. 24.

    If there is a political decision at the end of the extradition process, what factors can be considered?

  47. As discussed in question 10, after the STF has determined the legality of the extradition request, it is the executive power that decides whether or not it will extradite the individual. This final decision is discretionary, as there are no factors fixed by law that serve as a guide to the executive power. Thus, what is usually taken into consideration at this stage is the political position and interests of the executive power.

    One famous case in Brazil that exemplifies political influence and how a decision is discretionary at the final stage, is the Battisti case. Cesare Battisti was convicted in Italy to life imprisonment for being part of a left-wing armed group and killing four people. Even though the STF allowed the extradition, the Brazilian president at the time, who was from a Brazilian left-wing party, decided not to extradite Battisti. Eight years after this decision, when another party was in power, the extradition of Battisti was allowed.

  48. 25.

    What ability is there to appeal against or judicially challenge decisions made during the extradition process? What are the requirements for any appeal or challenge?

  49. The scope for challenging an extradition decision is very limited. As has already been stated, it is not possible to challenge the executive power’s decision. 

    In general, it is also not possible to appeal a decision by the STF. Article 90 of the Migration Law clearly states that a decision by the STF is final. However, according to case law, it is possible to challenge a decision through a motion for clarification or through a Writ of Mandamus. However, as it is the same court that will consider such a request, the chances of success are very low.

  50. 26.

    What are the time limits for the extradition process? How long does each phase of the extradition process take in practice?

  51. Once the STF has interviewed the requested person, the defence has 10 days to present its written arguments. During the trial process, if the attorney general requests due diligence in gathering more evidence, the defence has 60 days to present all the evidence it has found. After this period has elapsed, the trial will continue whether or not the evidence has been submitted. 

    Another time limit is established regarding provisional arrest. After an individual is arrested, the requesting state has 60 days to present an extradition request to the Brazilian authority (Migration Law, article 84). 

    In addition, after the executive power authorises the extradition at the third stage of the process, the requesting state has 60 days to remove the individual from the Brazilian territory. If this time limit is not respected, the person will be released (Migration Law, articles 92 and 93).

    These time limits are based on the general rules of extradition, established in the Migration Law and the Brazilian Federal Constitution. Other time limits may be established in treaties.

  52. 27.

    In what circumstances may parallel proceedings delay extradition?

  53. Domestic criminal proceedings may delay the extradition of an individual. As stated on an extradition request, it is necessary to wait until a domestic proceeding is concluded. If an individual is being prosecuted in Brazil for an offence or offences other than those for which that individual was convicted and given a prison sentence (for different offences), it will also be necessary to wait until the individual has served the sentence (Migration Law, article 95).

    Extradition can also be delayed if it would put the individual’s life at risk. For this to be sanctioned, it is necessary to prove through an official medical report that the individual has a serious illness and that extradition can cause irreparable harm (Migration Law, article 95, paragraph 1).

    If the individual is protected by asylum, extradition will not be allowed to any country whatsoever. If a person is still applying for asylum when a request for extradition is made, the decision to extradite can be suspended until the executive power determines whether or not asylum will be granted (Migration Law, article 82, IX; Law No. 9.474/97).

    In addition, the requesting state must commit to following the rules established in article 96 of the Migration Law, the aim of which is to prevent human rights breaches following extradition. If the requesting state does not observe these rules, the extradition will be delayed.

    Moreover, since the final decision is made by the executive power, political disputes can have an influence on the duration of the process.

  54. 28.

    What provision is made for legal representation of the requesting state or the requested person?

  55. Only sovereign states are entitled to request extradition. The requesting state can be represented by its Ministry of External Relations or any other official body or individual, as long as it has the power to represent the state.

    The requested person should be represented by a lawyer. If the individual does not have the means to pay for a private lawyer, the court will appoint a public defender.

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Questions

  1. 1.

    Are extradition proceedings regulated by domestic legislation, treaties or both?


  2. 2.

    Is there a central register of extradition treaties that your state has entered into?


  3. 3.

    Do special extradition arrangements apply to certain foreign states, for example states that are geographically proximate, or politically, legally or economically closely linked?


  4. 4.

    Is extradition possible to states that have no bilateral or multilateral extradition treaty with your state if they are party to an international convention?


  5. 5.

    Is extradition possible to states that are not extradition treaty partners as an ad hoc arrangement?


  6. 6.

    For which offences is extradition from your state allowed?


  7. 7.

    Is there a requirement for double (dual) criminality? How is this assessed?


  8. 8.

    How would your state deal with a request that includes an offence for which extraterritorial jurisdiction is claimed?


  9. 9.

    What must be included as part of a valid extradition request made by the foreign state?


  10. 10.

    What are the stages of the extradition process?


  11. 11.

    If an initial political decision is required, what factors can be considered?


  12. 12.

    Is provisional arrest, before the extradition request is received, possible?


  13. 13.

    Must a domestic arrest warrant be issued or can an Interpol red notice be used to carry out a provisional arrest?


  14. 14.

    What is required to apply for a domestic extradition arrest warrant?


  15. 15.

    What rights does the requested person have while under arrest?


  16. 16.

    Is bail available in extradition proceedings?


  17. 17.

    If so, what are the factors that a court will take into account in deciding whether to grant bail?


  18. 18.

    Can the court impose conditions when granting bail? What conditions can be, and usually are, imposed?


  19. 19.

      What bars can be raised to resist extradition?


  20. 20.

    Does your state extradite its own nationals and residents?


  21. 21.

    Are potential breaches of human rights after extradition considered in the extradition process?


  22. 22.

     Can a person consent to extradition, and what is the procedure? Is consent irrevocable?


  23. 23.

    Is there a speciality protection? How is it provided? Does it apply if a person consents to extradition?


  24. 24.

    If there is a political decision at the end of the extradition process, what factors can be considered?


  25. 25.

    What ability is there to appeal against or judicially challenge decisions made during the extradition process? What are the requirements for any appeal or challenge?


  26. 26.

    What are the time limits for the extradition process? How long does each phase of the extradition process take in practice?


  27. 27.

    In what circumstances may parallel proceedings delay extradition?


  28. 28.

    What provision is made for legal representation of the requesting state or the requested person?