File No. 211.32/6.
The American Ambassador to
the Secretary of Slate.
No. 224.]
American Embassy,
Rio de Janeiro,
July 29th, 1913.
Sir: In amplification of my telegram of July
27th, which related to the recent publication in the Official Gazette of
an executive decree denouncing our treaty of extradition with Brazil,
signed on the 14th of May, 1897, together with the protocols and annexes
of May 28th, 1898, and May 29th, 1901, I have the honor to report as
follows:
The Embassy had received no information either from the Department or
from the Brazilian Foreign Office that Brazil had in mind the
denunciation of this treaty. It was, therefore, with surprise that I
received a Foreign Office note, a translation of which forms the first
enclosure of this despatch, in which I was informed that the Government
of Brazil had determined to sanction and promulgate the law which the
Brazilian Congress voted on the 28th of June, 1911, (a copy of which was
enclosed with Mr. Dudley’s despatch No. 758, of August 28th, 1911) which
regulated the manner in which Brazilians and foreigners should be
extradited as well as the mode of their trial when they should have
committed crimes abroad enumerated in the body of the said law. The note
also stated that the 12th clause of the law provided not only that its
text should be transmitted to those countries which maintained relations
with Brazil but also, that all existing extradition treaties should be
cancelled in order that those which hereafter should be negotiated might
be uniform and might be framed in accordance with the provisions of the
law.
[Page 31]
I was also informed that these two provisions had already been carried
into effect.
Moreover, the note went on to state:
The provisions of the law are sufficient in themselves to
guarantee that in cases where the Government of Brazil shall
address petitions for extradition to other countries,
reciprocity in treatment of such petitions shall be afforded.
Nevertheless, for the satisfactory settlement of details, it has
been found convenient that new treaties shall be concluded.
In order to attain this end, I have drawn up the enclosed
project, based upon the articles and principles established by
the above-mentioned law. I ask Your Excellency to submit this
project to your Government so that, after careful examination,
it may express its opinion upon it, informing me whether it is
acceptable in its present form or whether slight modifications
should be inserted which would not be antagonistic to the said
articles and principles of the law of June 28th, 1911.
Enclosed with this note was a printed draft of a treaty of extradition, a
copy of which, together with the translation, I have the honor to
enclose.
On the same day on which the above note reached the Embassy, the Diario
Official printed an executive decree of the 23rd of July stating that
the President of Brazil made public the fact that from that day he had
denounced the treaty of extradition between Brazil and the United
States, together with its protocols and annexes. A translation of the
text of this decree is also herewith enclosed.
Beyond formally acknowledging the receipt of the above mentioned note, I
have not communicated on the subject of the extradition treaty with the
Foreign Office, preferring to await any instructions which you may see
fit to give me.
I have [etc.]
[Inclosure 1—Translation.]
The Minister for Foreign
Affairs to the American
Ambassador.
Section 2a. No. 1.]
Ministry of Foreign Relations,
Rio de Janeiro,
July 22nd, 1913.
Mr. Ambassador: The Brazilian Government, with the intention of
granting extradition petitions relating to criminals taking refuge
in Brazil and coming from those countries with which Brazil has not
yet negotiated treaties of extradition, has determined to sanction
and promulgate, under No. 2416 and under date of June 28th, 1911,
the law-voted by the National Congress which regulated the manner in
which Brazilians and foreigners shall be extradited as well as the
mode of their trial when they shall have committed such crimes
abroad as are enumerated in the body of the said law.
The 12th clause of this law provides not only that the text of the
law shall be sent to all countries which maintain relations with
Brazil but also that all existing extradition treaties shall be
cancelled in order that any treaties which hereafter shall be
negotiated may be uniform following the provisions of the above law.
This has already been done.
The provisions of the law are sufficient in themselves to guarantee
that in cases where the Government of Brazil shall address petitions
for extradition to other countries, reciprocity in treatment of such
petitions shall be afforded. Nevertheless, for the satisfactory
settlement of details, it has been found convenient that new
treaties shall be concluded.
In order to attain this end, I have drawn up the enclosed project,
based upon the articles and principles established by the above
mentioned law. I ask Your Excellency to submit this project to your
Government so that, after careful examination, it may express its
opinion upon it, informing us whether it is [Page 32] acceptable in its present form or whether
slight modifications should be inserted which would not be
antagonistic to the said articles and principles of the law of June
28th, 1911.
I have [etc.]
[Subinclosure—Translation.]
Draft of an extradition treaty.
The President of the Republic of the United States of Brazil
and______animated by a desire to prevent fugitive criminals from
freely moving or finding an asylum within the territory of each of
the High Contracting Parties, have agreed to celebrate the present
Extradition Treaty, and for that purpose have nominated the
following Plenipotentiaries:
The President of the Republic of the United States of Brazil______and
Mr. ______who, after having made known their respective full powers,
which have been found in good and due form, agree upon the following
articles:
Article 1.
The two High Contracting Parties mutually agree to deliver up to each
other the criminals passing through their respective territories, or
who have sought there an asylum, provided that the following
conditions exist:
- 1.°
- That the party making the demand has the authority to
prosecute and judge the crime or offense occasioning the
demand;
- 2.°
- That the fault or crime perpetrated before or after the
celebration of this Treaty be of an ordinary
character;
- 3.°
- That the criminal shall have already been convicted or
condemned as the principal culprit, a fellow culprit or
accomplice;
- 4.°
- That the penalty to be inflicted or already inflicted by
the laws of the country demanding the extradition be one
year’s imprisonment at least, both for the convicted persons
and the condemned persons;
- 5.°
- That the party making the demand shall exhibit documents
which, according to the laws of said party and to those of
the party to whom application is made shall prove the
criminality of the person making the demand or justify his
prosecution;
The foregoing articles apply also to any attempt at the commitment of
the crimes or offenses subject to extradition.
Article 2.
The High Contracting Parties shall in no case be obliged to surrender
their own citizens, but should any of them be given up it will only
be on the basis of complete reciprocity.
Article 3.
Extradition shall be refused:
- 1.°
- When the crime or sentence shall have been extinguished by
prescription according to the law of the country requesting
the extradition or when the culprit shall have been already
tried therein for the very crime to which the request
refers;
- 2.°
- When it refers to purely military crimes, to crimes
against religion, to crimes against the press, or political
crimes and those of similar nature.
The allegation of a political purpose or motive shall not hinder the
extradition when the offense is merely an ordinary infraction of
criminal law;
The following are not considered political offenses:
- a)
- Acts of anarchical character constituting crimes provided
against by the laws of the Contracting States.
- b)
- The murder or an attempt at murder against the Chief of
the State demanding the extradition, against his legal
substitutes and against his ministers of State or against
any of the heads of the separate States forming part of a
Confederation or against any of the Governors of the States
which constitute a Federal State.
Article 4.
When, in order to prevent the escape of a criminal, one of the High
Contracting Parties shall deem his provisional arrest urgent, as a
preliminary measure [Page 33] to
extradition, the party shall apply for extradition by telegraph or
by post or through a diplomatic agent stating at least, that a
warrant for the apprehension of the demanded person has been issued
or a writ of arrest in flagrante. This arrest shall hold for sixty
days within which period the demanding Government shall present the
formal demand for extradition duly-evidenced.
Article 6.
Demands for provisional arrest and those for extradition shall be
made by one Government to the other Government either directly or
through their respective diplomatic agents and shall be accompanied
by the following documents:
- 1.°
- In relation to the accused whose provisional arrest is
requested, a certified copy, at least, of the warrant of
arrest or of the writ of imprisonment in flagrante.
- 2.°
- In relation to those criminals already convicted: a
certified copy of the sentence or of the criminal
prosecution from a competent judge and containing a precise
statement of the acts charged, of the place where and the
date when it was committed and a copy of the text of the
penal law applicable to the special act.
- 3.°
- Whenever it be possible, the above stated documents shall
be accompanied by a photograph, finger prints or the
characteristic indications of the person whose surrender is
asked.
In no case shall the request of the accused person be granted that he
be delivered up to the State demanding him previous to the
presentation of the required documents.
Article 6.
If the penalty incurred by the fugitive criminal be that of death or
corporal punishment, the extradition shall be granted by Brazil only
on the condition that it be commuted by the competent authorities to
that of imprisonment.
Article 7.
Except in the case of death of the person whose surrender is
requested, and of desistance on the part of the requesting
Government the provisional arrest and the extradition already
granted shall be ineffective in the following cases:
- 1.°
- If within sixty days from the date of the provisional
arrest of the criminal, the documents supporting the request
for extradition in due form and duly certified to being not
presented by the demanding Government.
- 2.°
- If the criminal, when placed at the disposal of the
demanding State, Legation or Consulate, be not removed
within twenty days of the date of the advice thereof.
- 3.°
- If within sixty days of the date of the provisional
arrest, the prisoner shall apply for and obtain a writ of
habeas-corpus
In any of the aforesaid cases the person discharged from custody
shall not be arrested again for the crime which caused the request
for extradition.
Article 8.
The delivery of a person whose surrender is requested shall be
postponed without any injury to its effectiveness:
- a)
- While the procedure in regard to habeas-corpus is going
on;
- b)
- When serious disease does not permit the criminal without
danger to his life to be removed to the demanding
country;
- c)
- When the person whose extradition is requested be under
penal prosecution in the demanded State.
Article 9.
When an application for extradition, made by one of the High
Contracting Parties be considered by the other Party as unacceptable
because it is not in clue form or on account of the insufficiency of
the documents presented, these, documents shall be returned to the
former, the reasons being stated which have prevented the progress
of the procedure.
In this case, a new application may be made in due form.
[Page 34]
Article 10.
Relative to the procedure for application for extradition, and to the
legitimacy of such procedure, the admission and consideration of the
objections by which it may be impugned by the fugitive criminal
demanded, shall proceed, in conformity with the legal proceedings
and practices in force in the said country.
To the fugitive criminal, however, there remains the right of
restoring to habeas-corpus or bail, according to the course
established by the laws of the country from which the extradition is
demanded.
Article 11.
Persons delivered through extradition shall not be tried or punished
for political crimes previous to the extradition or for any acts in
connection therewith. They may, however, with their free and
declared consent, be tried and judged for common offenses liable to
extradition in accordance with the present Treaty, and; which have
not been the reason for extradition previously granted, but they
shall not be delivered to the third Power demanding them without the
consent of the State from which the extradition is asked.
This, consent shall not be necessary, if after having been pardoned
or having completed the term of sentence the person remains for more
than one month in the territory of the State requesting
extradition.
Article 12.
When several powers request the delivery of the same person for the
same crime, the country in the territory of which the crime was
committed shall have precedence; if several crimes have been
committed, the request dealing with the gravest crime shall be first
conceded, at the discretion of the Government from whom extradition
is requested; if the crime be of equal gravity and committed at
different dates, the request first presented shall have the
preference, but if all requests have the same date, the Government
applied to shall decide to which of the demanding States the
criminal shall be delivered.
Article 13.
A criminal who, after having been surrendered to the demanding State,
shall succeed in escaping the course of justice and shall seek
asylum again in the territory of the State from which extradition
was demanded or pass across it, shall be detained through direct
requisition or by diplomatic intervention and delivered up again,
without further formalities.
Article 14.
The Power from which extradition was demanded shall convey the
criminal to the harbour or locality most convenient for his
embarkation or delivery to the agents who are to receive him.
The demanded Government may however, at the request of the demanding
Government send one or more agents either of the military or police
force, to guard the criminal, until he reaches his destination. In
this case, the demanding Government shall defray the travelling
expenses of its agents.
Article 15.
The expenses incurred in the arrest, maintenance and extradition of
the criminal up to the date of his delivery or disembarkation shall
be borne by the State from which the extradition be demanded; after
that, they shall be borne by the demanding State.
Article 16.
All articles, valuables or documents Having any connection with the
crime which causes the extradition and found in the possession of
the criminal at the time of his arrest or in his luggage, shall be
seized and delivered together with the criminal to the demanding
State.
The articles or valuables in possession of third persons shall also
be seized but shall only be delivered to the demanding State after
the claims raised by their owners have been decided.
[Page 35]
Article 17.
One of the High Contracting Parties shall permit a criminal delivered
up by a third Power to the other Party to be conveyed in custody
across its territory or over its territorial waters, except if the
criminal be a native of the country to be crossed or in case the
criminal in question be one covered by this Treaty.
For the same purpose a simple notification containing the request for
permission of transit and the designation of the offense occasioning
the extradition shall be sufficient.
Article 18.
When, in a non-political criminal case, the testimony or summoning of
witnesses resident or in transit through the territory of one of the
High Contracting Parties be necessary for the evidence of a
procedure, the other shall make demand through diplomatic or
consular channels. That testimony shall be furnished in a rogatory
letter coming from competent authority and accompanied by a
translation in the language of the country where it shall be carried
out.
The expenses connected with those criminal documents shall be borne
by the State receiving them.
Article 19.
The present Treaty shall be in force for an undetermined period, and
shall continue in force one year after one of the High Contracting
Parties shall have notified the other of any intention to denounce
it.
It shall be ratified and the ratifications exchanged at Rio de
Janeiro or at ______ after the legal formalities be fulfilled in
each of the two countries.
In witness whereof, the above mentioned Plenipotentiaries sign the
present Treaty in duplicate, written in the Portuguese and ______
language and thereunto affixing their seals in the city of Rio de
Janeiro, this ______ day of ______.
[Inclosure 2—Translation.]
Decree denouncing the treaty.
Official Gazette,
July 25th, 1913.
Decree No. 10,355, of the 23rd of July, 1913, published the
denunciation of the treaty of extradition of criminals signed in Rio
de Janeiro between Brazil and the United States of America on the
14th of May, 1897, and the protocols and annexes of the 28th of May,
1898, and the 29th of May, 1911.1
The President of the Republic of the United States of Brazil makes
public that from today the Treaty of Extradition of Criminals,
signed in Rio de Janeiro between Brazil and the United States of
America on the 14th of May, 1897, and the protocols and annexes of
the 28th of May, 1898, and the 29th of May, 1911,1 has ceased to be in
effect.
Rio de Janeiro, July 23,
1913, 92nd of Independence and 25th of the Republic.
