Global Investigations Review - The law and practice of international investigations

Extradition

Last verified on Thursday 7th May 2020

Brazil

João Daniel Rassi, Pedro Luís de Almeida Camargo and Victor Labate
Siqueira Castro Advogados
  1. 1.

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

  2. Extradition proceedings are regulated by both domestic legislation and treaties, according to the requesting authority. In the domestic legislation, both the Federal Constitution (especially article 5, LI and LII) and the Migration Law (Federal Law No. 13.445/2017, available at: <http://www.planalto.gov.br/ccivil_03/_Ato2015-2018/2017/Lei/L13445.htm>) are the main sources of regulation for the matter. The regulation set by the treaties may vary from case to case.

    Bilateral treaties. Brazil currently has bilateral treaties on extradition with the following countries: Angola, Argentina, Australia, Belgium, Bolivia, Canada, Chile, China, Colombia, Dominican Republic, Ecuador, France, India, Israel, Italy, Lithuania, Mexico, Panama, Paraguay, Peru, Portugal, Romania, Russia, South Korea, Spain, Suriname, Switzerland, Ukraine, United Kingdom and Northern Ireland, United States, Uruguay and Venezuela.

    Multilateral treaties. Brazil has signed and incorporated into the domestic legislation three multilateral treaties regarding the matter of extradition: one within the scope of Mercosur (Decree No. 4.975/2004), one concluded between Mercosur, Bolivia and Chile (Decree No. 5.867/2006) and one within the scope of the Portuguese Speaking Countries Community (Decree No. 7.935/2013).

    Subsidiary treaties. Brazil has signed multilateral conventions on the fight against international crimes that provide for specific extradition rules for the signatory countries: United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1998 Vienna Convention, Decree No. 154/1991), United Nations Convention against Transnational Organized Crime (Palermo Convention, Decree No. 5.015/2004), United Nations Convention against Corruption (Merida Convention, Decree No. 5.687/2006), OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Paris Convention, Decree No. 3.678/2000) and Inter-American Convention against the Illicit Manufacture of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials (1997 Washington Convention, Decree No. 3.229/1999).

  3. 2.

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

  4. The Supreme Federal Court keeps a register of extradition treaties in which Brazil is a signatory on its webpage, but it has not been updated since 2017:

    <http://www.stf.jus.br/portal/cms/verTexto.asp?servico=legislacaoTratadoExtradicaoTextual&pagina=IndiceTratadoExtradicao>.

    The Ministry of Justice and Public Safety's website also has a list of bilateral and multilateral extradition treaties:

    <https://www.justica.gov.br/sua-protecao/cooperacao-internacional/extradicao/acordos-de-extradicao-1/acordos-extradicao-bilaterais>.

    <https://www.justica.gov.br/sua-protecao/cooperacao-internacional/extradicao/acordos-de-extradicao-1/acordos-extradicao-multilaterais>.

    The extradition treaties that have been enacted and implemented into domestic legislation can be found at:

    Angola

    Decree no. 8.316/2014:

    <http://www.planalto.gov.br/CCIVIL_03/_Ato2011-2014/2014/Decreto/D8316.htm>.

    Argentina

    Decree no. 62.979/1968:

    <http://legis.senado.leg.br/norma/485606/publicacao/15802639>.

    Australia

    Decree no. 2.010/1996:

    <http://www.planalto.gov.br/ccivil_03/decreto/1996/D2010.htm>.

    Belgium

    Decree no. 41.909/1957:

    <https://www.planalto.gov.br/ccivil_03/decreto/1950-1969/d41909.htm>.

    Bolivia

    Decree no. 9.920/1942:

    <https://www2.camara.leg.br/legin/fed/decret/1940-1949/decreto-9920-8-julho-1942-466547-publicacaooriginal-1-pe.html>.

    Canada

    Decree no. 6.747/2009:

    <http://www.planalto.gov.br/ccivil_03/_ato2007-2010/2009/decreto/d6747.htm>.

    Chile

    Decree no. 1.888/1937:

    <https://www2.camara.leg.br/legin/fed/decret/1930-1939/decreto-1888-17-agosto-1937-449956-publicacaooriginal-1-pe.html>.

    China

    Decree no. 8.431/2015:

    <http://www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/decreto/D8431.htm>.

    Colombia

    Decree no. 6.330/1940:

    <https://www2.camara.leg.br/legin/fed/decret/1940-1949/decreto-6330-25-setembro-1940-327279-publicacaooriginal-1-pe.html>.

    Dominican Republic

    Decree no. 6.738/2009:

    <http://www.planalto.gov.br/ccivil_03/_ato2007-2010/2009/decreto/d6738.htm>.

    Ecuador

    Decree no. 2.950/1938:

    <https://www2.camara.leg.br/legin/fed/decret/1930-1939/decreto-2950-8-agosto-1938-345701-publicacaooriginal-1-pe.html>.

    France

    Decree no. 5.258/2004:

    <http://www.planalto.gov.br/ccivil_03/_ato2004-2006/2004/decreto/d5258.htm>.

    India

    Decree no. 9.055/2017:

    <http://www.planalto.gov.br/ccivil_03/_ato2015-2018/2017/decreto/D9055.htm>.

    Israel

    Decree no. 9.728/2019:

    <http://www.planalto.gov.br/ccivil_03/_ato2019-2022/2019/Decreto/D9728.htm>.

    Italy

    Decree no. 863/1993:

    <http://www.planalto.gov.br/ccivil_03/decreto/1990-1994/D0863.htm>.

    Lithuania

    Decree no. 4.528/1939:

    <https://www2.camara.leg.br/legin/fed/decret/1930-1939/decreto-4528-16-agosto-1939-346644-publicacaooriginal-1-pe.html>.

    Mexico

    Decree no. 2.535/1938:

    <https://www2.camara.leg.br/legin/fed/decret/1930-1939/decreto-2535-22-marco-1938-346111-publicacaooriginal-1-pe.html>.

    Panama

    Decree no. 8.045/2014:

    <http://www.planalto.gov.br/ccivil_03/_ato2011-2014/2013/decreto/D8045.htm>

    Paraguay

    Decree no. 16.925/1925:

    <https://www2.camara.leg.br/legin/fed/decret/1920-1929/decreto-16925-27-maio-1925-543258-publicacaooriginal-53411-pe.html>.

    Peru

    Decree no. 5.853/2006:

    <http://www.planalto.gov.br/ccivil_03/_Ato2004-2006/2006/Decreto/D5853.htm>.

    Portugal

    Decree no. 1.325/1994:

    <https://www2.camara.leg.br/legin/fed/decret/1994/decreto-1325-2-dezembro-1994-449635-publicacaooriginal-1-pe.html>.

    Romania

    Decree no. 6.512/2008:

    <http://www.planalto.gov.br/ccivil_03/_Ato2007-2010/2008/Decreto/D6512.htm>.

    Russia

    Decree no. 6.056/2007:

    <http://www.planalto.gov.br/ccivil_03/_Ato2007-2010/2007/Decreto/D6056.htm>.

    South Korea

    Decree no. 4.152/2002:

    <http://www.planalto.gov.br/ccivil_03/decreto/2002/D4152.htm>

    Spain

    Decree no. 99.340/1990:

    <http://www.planalto.gov.br/ccivil_03/decreto/1990-1994/D99340.htm>.

    Suriname

    Decree no. 7.902/2013:

    <http://www.planalto.gov.br/ccivil_03/_ato2011-2014/2013/decreto/D7902.htm>.

    Switzerland

    Decree no. 23.997/1934:

    <https://www2.camara.leg.br/legin/fed/decret/1930-1939/decreto-23997-13-marco-1934-551287-publicacaooriginal-67536-pe.html>.

    Ukraine

    Decree no. 5.938/2006:

    <http://www.planalto.gov.br/ccivil_03/_Ato2004-2006/2006/Decreto/D5938.htm>

    United Kingdom of Great Britain and Northern Ireland

    Decree no. 2.347/1997:

    <https://www.planalto.gov.br/ccivil_03/decreto/d2347.htm>.

    United States 

    Decree no. 55.750/1965:

    <https://www2.camara.leg.br/legin/fed/decret/1960-1969/decreto-55750-11-fevereiro-1965-396067-publicacaooriginal-1-pe.html>.

    Uruguay

    Decree no. 13.414/1919:

    <http://www.planalto.gov.br/ccivil_03/decreto/1910-1929/D13414.html>

    Venezuela

    Decree no. 5.362/1940:

    <https://www2.camara.leg.br/legin/fed/decret/1940-1949/decreto-5362-12-marco-1940-340601-publicacaooriginal-1-pe.html>.

    United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances

    Decree no. 154/1991:

    <http://www.planalto.gov.br/ccivil_03/decreto/1990-1994/d0154.htm>.

    United Nations Convention against Transnational Organized Crime

    Decree no. 5.015/2004

    <http://www.planalto.gov.br/ccivil_03/_ato2004-2006/2004/decreto/d5015.htm>.

    United Nations Convention against Corruption

    Decree no. 5.687/2006:

    <http://www.planalto.gov.br/ccivil_03/_ato2004-2006/2006/decreto/d5687.htm>.

    OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions

    Decree no. 3.678/2000:

    <http://www.planalto.gov.br/ccivil_03/decreto/D3678.htm>.

    Inter-American Convention against the Illicit Manufacture of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials

    Decree no. 3.229/1999:

    <http://www.planalto.gov.br/ccivil_03/decreto/D3229.htm>.

  5. 3.

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

  6. As provided in question 1, the Agreement on Extradition among the member of Mercosur (ratified under Decree No. 4.975/2004, available at: www.planalto.gov.br/ccivil_03/_ato2004-2006/2004/decreto/D4975.htm) and the one concluded between Mercosur and Bolivia and Chile (ratified under Decree No. 5.867/2006, available at: www.planalto.gov.br/ccivil_03/_ato2004-2006/2006/decreto/D5867.htm) are the multilateral treaties arranged due to geographical proximity between its component members.

    Brazil is also a member of the Convention on Extradition among members of the Community of the Portuguese-Speaking Countries, which has been ratified under Decree No. 7.935/2013 (available at:  www.planalto.gov.br/ccivil_03/_ato2011-2014/2013/decreto/D7935.htm) and is justified due to the political affinity between its members with history of Portuguese colonisation.

  7. 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?

  8. Extradition is possible even to states that have no extradition treaties with Brazil. The Supreme Federal Court's stance on the matter is that an extradition request from a sovereign state exempts the need of an existing extradition treaty when grounded on a promise from the requesting state of reciprocal treatment on similar cases (Supreme Federal Court, Extradition No. 1378, reporting Justice Carmen Lúcia, decided in 28 June 2016). The Migration Law (Federal Law No. 13.445/2017) also stablishes in several provisions the possibility of requesting an extradition based on a promise of reciprocity (ie, article 100, sole paragraph, V, for penalty execution extradition).

  9. 5.

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

  10. Yes, see question 4.

  11. 6.

    For which offences is extradition from your state allowed?

  12. The law does not list the extraditable offences, nor does it provide a statutory definition. In general, all crimes provided for in the Brazilian Criminal Code and the special criminal legislation with penalties of over two years of imprisonment (article 82, IV, Federal Law No. 13.445/2017) may be admitted as grounds for an extradition request, as long as the conditions set by articles 82 and 83 of Federal Law No. 13.445/2017 are met.

    Political crimes or crimes of opinion are not admitted as an extraditable offence (article 5, LII, of the Federal Constitution, and article 82, VII, Federal Law No. 13.445/2017), except when associated to a criminal offense or if the same fact constitutes a criminal offence (article 82, paragraph 2, Federal Law No. 13.445/2017). This analysis relies solely upon the Brazilian Supreme Court, which may not consider a political crime the offences practised against chiefs of state or other authorities, as such as the practice of crimes against humanity, war crimes, genocide and terrorism (article 82, aragraph 4, Federal Law No. 13.445/2016).

    Bilateral treaties often establish to which offences the extradition agreement is restricted.

  13. 7.

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

  14. Article 82, II, of Federal Law No. 13.445/2017 establishes that an extradition request may only be admitted if grounded on a fact that constitutes a crime in the Brazilian legislation and in the foreign state's legislation. The Supreme Federal Court considers that an absolute match between the domestic and the foreign legislation is not necessary. According to the Court, the analysis of double criminality must take into account that the foreign law is autonomous and has its peculiarities according to the country’s demands. Such analysis must take into account the finding of resemblance between the main elements of the crime (essentialia delicti) (refer to Supreme Federal Court, Extradition No. 953, reporting Justice Celso de Mello, decided on 28 September 2005).

  15. 8.

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

  16. The domestic legislation acknowledges requests that involve claims of extraterritorial jurisdiction from a foreign state. Article 83, I, of Federal Law No. 13.445/2017 determines that extradition is applicable when the crime was committed in the requesting state's territory or when the requesting state's law is applicable to the extradited person.

  17. 9.

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

  18. The Supreme Federal Court does not analyse the merit of the fact that served as ground for the request, but only the legality of the extradition. For this reason, the validity of the extradition request does not depend on criminal evidence. The request must be instructed with: (i) documents that attest that the extradited person is either being prosecuted for a crime in the foreign jurisdiction or with a copy of the decision from the sentencing judicial authority; (ii) the pertinent foreign legislation; (iii) documents that indicate the place, the date, the nature, the circumstances and the legal classification of the criminal facts. The documents must be translated, but this translation does not need to be legalised.

  19. 10.

    What are the stages of the extradition process?

  20. The request for extradition is generally received by diplomatic means, through the Ministry of Foreign Affairs, and referred to the Ministry of Justice and Public Safety. This is the first stage of the process and this authority will verify whether the request is formally admissible or not, considering if there is an existing extradition treaty or a promise of reciprocal treatment. If admitted, the request will be forwarded to the Supreme Federal Court.

    The Supreme Federal Court will then judge the request's legality (article 102, I, g, of the Federal Constitution), according to the Constitution, existing treaties and the provisions of Federal Law No. 13.445/2017.

    After receiving the notification from the Ministry of Justice and Public Safety, the designed reporting justice will schedule a date for the interrogation of the extradited person and appoint a defence counsel, if needed (article 91 of Federal Law No. 13.445/2017). After the interrogation, a written defence must be presented within ten days to address the extradited person’s identity, any formal defects on the documents presented or the illegality of the extradition (article 91, paragraph 1, of Federal Law No. 13.445/2017). If the request is not properly instructed, the Federal Public Prosecutors' Office may ask for a 60-day deadline to take measures to remedy the instruction (article 91, paragraphs 2 and 3, of Federal Law No. 13.445/2017).

    After that, the Court will judge the extradition request. If granted, the surrender of the extradited person must be authorised by the President (article 84, VII, of the Federal Constitution). The extradited person will not be surrendered to the foreign state unless the state commits to the conditions established in article 96, of Federal Law No. 13.445/2017 (especially regarding the prohibition of submitting the extradited person to inhuman penalties, such as corporal punishment, life imprisonment or the death penalty, with limitation to 30 years of maximum penalty).

    The requesting state will then have 60 days (or the deadline established in the applicable extradition treaty) to remove the extradited person from the Brazilian territory (article 92, of Federal Law no. 13.445/2017), after which he or she will be released if still in Brazilian custody (article 93, of Federal Law No. 13.445/2017).

  21. 11.

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

  22. As provided in answer 10, the initial phase of the extradition does not include political factors, since the Ministries of Foreign Affairs and Justice and Public Safety’s analysis will be limited to checking whether the request if formally valid so it can be forward to the Supreme Federal Court.

  23. 12.

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

  24. Yes. According to article 84 of the Brazilian Migration Law (Law No. 13.445/2017), the foreign state can request the provisional arrest of the requested person in urgent situations. The provisional arrest possibility is also mentioned in the extradition treaties.

  25. 13.

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

  26. According to article 84 of the Brazilian Migration Law, a domestic warrant must be issued for the provisional arrest to be made. However, the arrest request can be issued via an Interpol notice, according to the second paragraph of the same article. Each treaty may establish different procedures and ways of requesting the provisional arrest, but the necessity of a domestic warrant is unavoidable.

  27. 14.

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

  28. The law requires that the warrant request must be accompanied by information regarding the allegedly committed crime, as well as the reasoning for the necessity and urgency of the provisional arrest (Brazilian Migration Law, article 84, paragraph 1). Since the provisional arrest can only be carried out as a precautionary measure for the extradition, the requesting party must provide grounds on why it is necessary for the process.

  29. 15.

    What rights does the requested person have while under arrest?

  30. Brazilian legislation does not differentiate foreign and native prisoners in regard to their rights under arrest. Thus, the requested person can only be arrested if there is a written and grounded warrant against him or her  (Brazilian Constitution, article 5, LXI) and has the right to know by whom he is being arrested (Brazilian Constitution, article 5, LXIV). Besides, he has the right to inform his arrest to his family or any other person he wants to (Brazilian Constitution, article 5, LXII), the right to remain silent and the right to legal counsel, all of which must be informed at the moment of his or her arrest (Brazilian Constitution, article 5, LXIII).

  31. 16.

    Is bail available in extradition proceedings?

  32. Bail is not available in extradition proceedings. However, it is worth mentioning that not even the presence of an urgency situation guarantees that the requested person will remain under arrest, since Brazilian judicial authorities may find the provisional arrest unnecessary or excessive and substitute it for alternative precautionary measures, such as passport retention and house arrest (Brazilian Migration Law, article 86).

  33. 17.

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

  34. Even though there is no bail available, Brazilian judicial authorities take into account the migratory situation of the requested person, his or her criminal record, and the crime for which he or she is being prosecuted or for which he or she was sentenced in the requesting state to substitute the provisional arrest for alternative precautionary measures (Brazilian Migration Law, article 86). Other factors that may be evaluated include the necessity of the arrest and the personal conditions of the requested person, such as his or her family and health status (Supreme Federal Court, Provisional Arrest to Extradition No. 760, reporting Justice Edson Fachin, decided in 10 November 2015).

  35. 18.

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

  36. As mentioned, there is no bail available in extradition proceedings. However, the alternative precautionary measures constitute conditions for the release of the arrested individual, and can range from the aforementioned passport retention and house arrest to additional conditions such as not leaving the city in which the person resides and periodically showing up at the court to inform current activities, among others listed in article 319 of the Brazilian Criminal Procedure Code (Supreme Federal Court, Extradition No. 1.535, reporting Justice Alexandre de Moraes, decided on 16 August 2019).

  37. 19.

      What bars can be raised to resist extradition?

  38. The person’s defence possibility is limited to matters of formality, the person’s identity and legality of the extradition proceeding as Brazilian courts do not have the authority to review the requesting state’s sentence (Supreme Federal Court, Extradition No. 615, reporting Justice Paulo Brossard, decided on 19 October 1994). The Brazilian Supreme Court has consistently decided that it does not have the authority to analyse the evidence presented in the criminal procedure of the state of origin (Supreme Federal Court, Extradition No. 1.459, reporting Justice Ricardo Lewandowski, decided on 4 February 2020).

    However, the bars that can be raised to resist extradition vary widely. They include formal aspects of the extradition request, regarding the correct following of the procedures listed in treaties or in the Brazilian Migration Law, such as those related to the requesting agency status as a diplomatic body or as an authority with powers to request extradition (Brazilian Migration Law, article 81, paragraph 1); or may address errors or lack of the documentation required by law or treaties to correctly identify the requested individual or the crime for which he is being prosecuted or was sentenced in the requesting state (Brazilian Migration Law, article 88, 3 paragraph 3; the Brazilian Ministry of Justice Decree No. 217/2018, article 7). There are also bars that can be raised regarding the nationality status of the individual, since there are restrictions on extraditing naturalised Brazilians and prohibition on extraditing native Brazilians (Supreme Federal Court, Extradition No. 1.446, reporting Justice Dias Toffoli, decided on 7 December 2017).

    Besides those formal bars, the requested individual’s defense may include arguments regarding the illegality of the extradition request. The basis for those arguments can be the presence of any of the situations described in article 82 of the Brazilian Migration Law:

    • the requested individual is a native Brazilian citizen;
    • the offence by which the individual is being prosecuted is not considered a crime in Brazil or in the requesting state; Brazil has jurisdiction over that fact;
    • the maximum sentence for the alleged crime is under two years of imprisonment according to Brazilian law;
    • the individual is already being prosecuted, was already convicted or acquitted of the same offences grounding the extradition request in Brazil – which is a protection against double jeopardy;
    • the statute of limitation for the offence has already been reached under Brazilian or the requesting state’s law;
    • the offence is a political or opinion crime;
    • the requested individual is being prosecuted by an ad hoc court; or
    • the requested individual is under asylum or is legally considered a refugee.

    The legality of the extradition may also be challenged in terms of the absence of the conditions listed by article 83 of the Brazilian Migration Law. These conditions are: the offence related to the extradition request must have been committed in the requesting state’s territory or be under its jurisdiction; and the crime must entail imprisonment under the requesting state’s law.

    For the extradition to be completed, the requesting state must also commit to a number of conditions listed in article 96 of the Brazilian Migration Law, which are:

    • the state must not impose sentences or try the extradited for facts happened before the extradition request and were not the basis for the request;
    • the state must deduct the time the extradited spent under arrest during the extradition proceeding from the sentence;
    • the state must change any kind of death or life sentence, or corporal punishment, to imprisonment limited to 30 years;
    • the state must not surrender the extradited to another state without Brazilian consent;
    • the state cannot aggravate the sentence on political grounds;
    • the state must not submit the extradited to torture or any other degrading, inhumane or cruel treatment.

    Given those commitments, the requested individual’s defence may also challenge the extradition proceeding on the grounds that the requesting state will not comply with the conditions and, therefore, the extradition is illegal. The defence may also argue that the individual was given an impartial and fair trial (Supreme Federal Court, Extradition No. 1578, reporting Justice Edson Fachin, decided on 6 August 2019).

    The burden of proof for any bars raised to resist extradition is on the requested individual. Although there is no legal provision of the standard of proof required, the precedents indicate that the individual’s defence must provide clear and convincing evidence to challenge the extradition (Supreme Federal Court, Extradition No. 1009, reporting Justice Sepúlveda Pertence, decided on 19 October 2007).

    Any of the mentioned arguments may only be presented before the Federal Supreme Court during the judicial phase of the extradition proceeding, since that is the only moment the requested individual has a right to present a defence against the extradition proceeding.

  39. 20.

    Does your state extradite its own nationals and residents?

  40. Brazilian native citizens can never be extradited, according to article 5, LI of the Brazilian Constitution. On the other hand, naturalised Brazilian citizens may only be extradited by crimes committed before the acquisition of Brazilian nationality or by drug trafficking-related offences. There are no restrictions on extraditing residents that are not Brazilian citizens, even if they are married to Brazilian citizens and have Brazilian children (see Supreme Federal Court, Extradition No. 415, reporting Justice Oscar Corrêa, decided on 27 June 1984; also, Supreme Federal Court’s consolidated understanding No. 421).

  41. 21.

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

  42. As mentioned on the answer to question 19, the requesting state must commit to complying with a series of conditions regarding human rights for the requested individual to be extradited, including the duration of the imposed sentence, the abstention from torturing or imposing cruel or degrading punishments or taking into account political or opinion matters in sentencing. Besides, other human rights may be taken into account in the extradition process, such as assessing if the requesting state has assured the requested individual a right to a fair and impartial trial. If the Supreme Court finds that the requesting State is not able to provide a fair trial and due process, the extradition request can be denied (Supreme Federal Court, Extradition nNo. 1.442, reporting Justice Celso de Mello, decided on 20 December 2019).

    Those breaches are considered mainly by the Federal Supreme Court during the judicial phase of the proceeding and may result in a rejection of the extradition request.

  43. 22.

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

  44. The requested person may consent to being extradited, but the consent must be expressly stated, and the individual must have been assisted by an attorney and be informed of his or her right to an extradition proceeding and all of the related rights and protections he or she is wavering by consenting to extradition. There is no provision on the possibility of revoking consent, but it may be requested by the individual to guarantee his or her rights.

    The consequence of the extradited person’s consent on the extradition is that the final decision regarding the legality of the request, taken by the Supreme Federal Court, must be taken individually by the reporting judge, without the need for further analysis by other members of the Court (refer to Extradition No. 1.564, reporting Justice Luiz Fux, decided on 21 May 2019).

  45. 23.

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

  46. Yes, there is specialty protection, as provided by article 96, I of the Brazilian Migration Law, which forbids the punishment, sentencing or trial of the extradited individual by facts other than the ones on which the request was grounded. The person’s consent is irrelevant to that matter, since this is a commitment made by the requesting state that constitutes a condition for the extradition.

  47. 24.

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

  48. The final part of the extradition proceeding consists of an authorisation by the President to conclude the extradited person’s transfer to the requested state. Such a decision is discretionary, having the Supreme Federal Court established that the President’s final decision is not subordinated to the Supreme Court’s conclusions (refer to Extradition No. 1.114, reporting Justice Cármen Lúcia, decided on 12 June 2008).

    Political factors that can be considered during the final decision include, but are not limited to: (i) the nature of the crime committed by the requested person; (ii) political orientation of the President’s political party; and (iii) the current status of the diplomatic relationship between Brazil and the requesting country.

  49. 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?

  50. Regarding the decisions made by the executive branch of government on the first stage of the proceeding, the challenges may be presented in the judicial phase, which is a mandatory part of the proceeding.

    Interlocutory decisions made by the Supreme Court judges can be challenged through and appeal, which is then judged by the entire bench. There are no special requirements for this interlocutory appeal. However, all final decisions made by the Supreme Court the extradition itself cannot be challenged through an appeal, according to article 90 of the Brazilian Migration Law. One could present a writ of habeas corpus to challenge a perceived evident illegality on such decision, but the chances of success are almost null, since it would be evaluated by the same court (refer to Supreme Federal Court, habeas corpus No. 136.898, reporting Justice Luiz Fux, decided on 19 May 2015).

  51. 26.

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

  52. There is no time limit for the extradition process to be concluded and the Migration Law only establish few deadlines (10 days for the requested person to present its written defence, 60 days for the Federal Public Prosecutor’s Office to gather evidence when proven to be necessary for the case’s judgment and 60 days for the requesting state to remove the person after the extradition judgment).

    The amount of time spent in each case depends mostly on political factors, which is the reason why it is impossible to be precise on how long each phase will take. For instance, Supreme Federal Court allowed the extradition of Cesare Battisti, a former member of the Armed Proletarians for Communism in the late 1970s, who had been convicted in Italy for implication in four deaths, and it took more than eight years for the Executive to finally authorise his extradition.

  53. 27.

    In what circumstances may parallel proceedings delay extradition?

  54. Domestic criminal proceedings may delay extradition. When the requested person is being tried for a crime that could entail imprisonment or when he is already serving a prison sentence, the extradition may only take place after the conclusion of the proceeding or the serving time (Brazilian Migration Law, article 95). A state of poor health of the requested individual may also delay the extradition, when the proven existence of a severe illness represents a risk to the person’s life (Brazilian Migration Law, article 95, paragraph 1).

    Pending refugee status recognition proceedings also delay extradition, since the refugee’s request suspend any extradition proceedings until a final decision has been made. Refugees or individuals under asylum cannot be extradited. However, it is worth noting that the Supreme Court has a precedent in which it revoked the refugee status during an extradition proceeding on the grounds that the refugee status concession by the Executive branch was illegal (refer to Supreme Federal Court, Extradition No. 1.085, reporting Justice Gilmar Mendes, decided on 16 December 2009).

    The extradition may also be delayed if the President does not surrender the extradited individual for political reasons, since the President’s decision on this matter is not subject to judicial review, as stated in the Supreme Court’s precedents (Supreme Federal Court, Reclamation No. 11.243, reporting Justice Gilmar Mendes, decided on 8 June 2011).

  55. 28.

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

  56. Only states can request extradition and the analysis regarding the fulfilment of representation standards (especially concerning the acceptance of eventual promise of reciprocity) are taken by the Executive (Ministry of Foreign Affairs and Ministry of Justice and Public Safety) as they forward the request to the Judiciary (refer to Supreme Federal Court, Extradition No. 453, reporting Justice Sydmey Sanches, decided on 28 May 1987).

    For individuals, legal representation is mandatory, for which a lawyer is necessary during the extradition proceedings. If the individual does not nominate a private lawyer for the case, the Supreme Federal Court’s reporting Justice will nominate 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?