File No. 211.32/2.
Article 12 of the statute requires that all existing treaties of
extradition shall be denounced, and I was informed on the 25th instant
by Baron do Rio Branco, the Foreign Minister, of his Government’s
intention, accordingly, to terminate all such treaties. The
Director-General of the Foreign Office, whom I saw later the same
afternoon, stated, however, that the notices of intention to abrogate
would not be issued until after a decision was made by the Supreme
Federal Tribunal respecting the constitutionality of the statute.* *
*
[Inclosure—Translation.]
Brazilian Extradition Statute No. 2416, of June
28, 1911.
The President of the Republic of the United States
of Brazil:
I make known that the National Congress has decreed and that I hare
sanctioned the following law:
Article I. The extradition of nationals and foreigners is
permitted:
Section 1. The extradition of nationals will be conceded when, by law
or treaty, the demanding country guarantees to Brazil reciprocity of
treatment.
Section 2. Lack of reciprocity will not prevent extradition in the
case of naturalization following the act which leads to the request
of the country where the offense has been committed.
Article II. Extradition cannot be granted in the following cases:
Section 1. When the crime is not punishable, according to Brazilian
law, by imprisonment of one year or more, including the attempt, the
participation and the complicity;
Section 2. When the person to be extradited is being tried, or has
already been condemned or acquitted, by the Judicial Power of
Brazil, for the same infraction which has led to the petition;
Section 3. When the crime or the penalty has already [been?]
prescribed according to the law of the demanding country.
Section 4. When the accused has to answer, in the country requesting
extradition, before some judge or court of exception;
Section 5. When the infraction is:
a) purely military;
b) against religion;
c) of the press;
d) political.
The allegation of political ends or motives shall not prevent
extradition when the deed constitutes principally an ordinary
infraction of the penal law.
The Supreme Federal Tribunal in taking cognizance of the request
shall particularly determine the nature of the infraction.
Extradition having been granted, delivery will not be made except on
condition that the country requesting the extradition shall
guarantee that a political end or motive shall not concur to
aggravate the penalty.
Article III. When the accused, against whom the request has been
made, is being tried or is subject to a prison penalty or other
penalty consequent upon his trial, for another act committed in
Brazil, his extradition will be decided in accordance with the
stipulations of this law, but the delivery will be effected after
the conclusion of the trial or the termination of the sentence.
Article IV. If the penalty, which the person to be extradited will
incur, be that of death or corporal punishment, according to the
laws of the demanding [Page 27]
country, extradition will be granted only on condition that said
penalty be commuted to one of imprisonment.
Article V. Extradition having been granted, the demanding country
must agree not to charge the person extradited, except for an act or
the acts for which his delivery is granted, unless, however, the
accused freely and expressly consents to be tried for those other
acts or if, when placed at liberty, he remains in the territory of
the demanding State for a period exceeding one month.
Article VI. The demanding State may not, without the consent of the
State of which the request is made deliver the extradited person to
a third State which may claim him except under the last exception
designated in the preceding article.
Article VII. In case requests for extradition are made by different
countries for the same person, if involving the same infraction, the
request of the country in whose territory the infraction, was
committed shall be preferred; in case other acts are involved, the
request which has to do with the most serious infraction will be
preferred; in case the infractions are of equal gravity, that State
will be granted the preference which shall first have made the
request for delivery. In the last two cases extradition may be
arranged for later delivery to the other demanding countries.
Article VIII. Extradition shall be requested through diplomatic
channels, the request being accompanied by a copy or authenticated
statement of the sentence of condemnation or the warrant or the
minutes of the criminal proceedings, issued by the proper judge.
These documents must contain a precise description of the
delinquency, the place and date on and in which it was committed,
and must be accompanied by copies of the texts of the laws
applicable to the crime.
Article IX. The Minister for Foreign Affairs will transmit the
request to the Minister of the Interior who will take steps looking
to the arrest of the person to be extradited and for his appearance
before the Supreme Federal Tribunal.
Sole Section. In urgent cases, provisional arrest may be effected as
a precautionary measure and the accused held for sixty days during
which time the country making the request shall present to the
country of which the request is made a formal demand duly
authenticated.
Article X. No request for extradition will be granted without the
previous decision of the Supreme Federal Tribunal as to the legality
and propriety of the same.
Upon the arrest of the person to be extradited, all the documents
referring to the petition shall be sent to the Supreme Federal
Tribunal, from whose decision there shall be no appeal.
The person to be extradited, who will be brought before the Tribunal,
may be accompanied by a lawyer, his defense being a denial that he
is the person sought, formal defects in the documents presented, and
as to the legality of the extradition.
Article XI. If, within twenty days after the date of the granting of
the extradition and notice to the effect that the person to be
extradited is at the disposition of the demanding country, the
diplomatic agent of the said country fail to place the fugitive in
transit to the demanding country, the prisoner shall be set at
liberty and never again subjected to arrest for the same cause of
extradition.
Article XII. After publication of this law its text shall be
transmitted to all countries with which Brazil maintains relations
and all treaties of extradition still in force shall be
abrogated.
Article XIII. Brazilians, even out of the Republic, may be tried and
sentenced when, in foreign lands, they commit any of the crimes:
a) Against the independence, integrity and dignity of the native land
(Penal Code, articles 87, 92, 94, 98, 101, 102 and 104);
b) Against the Constitution of the Republic and the form of its
government (Penal Code, Articles 107 and 108);
c) Counterfeiting (Penal Code, articles 239 and 243);
d) Forgery of securities of the Federal Government, of the States and
of Banks (Penal Code, articles 245 and 250).
Section 1. The judgment against such criminals however become[s]
effective only upon their return, of their own accord or by
extradition, to the country.
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Section 2. The trial and judgment of foreigners who shall have
committed any of the crimes here enumerated shall only take place
when the criminals, of their own accord or by force, shall have come
into the country.
Article XIV. Either a national or a foreigner may be tried and judged
in Brazil who, in foreign territory, commits a crime against a
Brazilian which entails, according to Brazilian law, a penalty of
two years at least.
Section 1. The trial of a national or foreigner shall be commenced
only upon requisition by the Minister of the Interior or complaint
of the offended party, when, in cases where extradition is
permitted, such trial is not requested by the country in whose
territory the infraction was committed.
Section 2. The trial and judgment of the crimes referred to in
article 14 shall not take place when the criminals have already, in
a foreign land, been acquitted, punished or pardoned for such
crimes, or when the crime or punishment has already [been]
prescribed according to a more favorable law.
The trial and judgment of crimes stipulated in article 13 shall not
be obstructed by any decision or act whatever on the part of foreign
authority.
Nevertheless, the time served in foreign countries for such crimes
shall be computed in the term of imprisonment.
Section 3. The Federal judiciary is always the proper branch to deal
with . those crimes committed in foreign territory.
Article XV. All provisions to the contrary are hereby revoked.
Rio de Janeiro,
June 28, 1911; 90th of
the Independence and 23rd of the
Republic.
Rivadavia da Cunha Correa.
