File No. 211.32/2.

The American Ambassador to the Secretary of State.

No. 758.]

Sir: Referring to the Department’s instruction No. 294, of May 13, 1911,2, I have the honor to report that, on June 28, 1911, the bill regulating extradition in this country, of which I forwarded a copy with [Page 26] my No. 444 of November 28, 1909,2 became a law without amendment. Two copies and translations of the statute are herewith enclosed. The passage of the act was wholly unexpected by the interested missions in view of the confident prediction made at the Foreign Office (see my No. 591, of September 12, 19101) and the attitude of the Foreign Minister in opposition to its passage last year.

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.* * *

I have [etc.]

Irving B. Dudley.

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.

Hermes R. da Fonseca.

Rivadavia da Cunha Correa.

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