Extraditing foreigners to Arab countries is rare in Brazil

Foreigners who commit crimes in Arab countries and move to Brazil will not always be extradited. Check out this article to find out everything you need to know about why extraditing foreigners to Arab countries is rare in Brazil.

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Author: Mariana Cruz de Lemos

How does extradition work? 

Extradition is an act of cooperation between countries that involves the surrender of a person from one country to another.

The foreigner handed over can be in either a regular or irregular situation, meaning they can be in Brazil either with a visa/residence permit or illegally. The extradition rules will be applied regardless of how the foreigner entered Brazilian territory.

The extradition can occur in two situations:

• For the purpose of providing evidence in an investigation or criminal proceedings that the requested person is involved in.
• For the purpose of fulfilling a sentence already imposed on the convicted person.

Both types of extradition can be requested via diplomatic channels, or in the absence of a diplomatic agent of the requesting country, directly between governments. The request must be accompanied by pretrial detention or a final conviction of imprisonment.

The extradition request will be presented to the Supreme Federal Court, which will analyze the properties of the case and decide whether it meets the requirements stipulated by relevant legislation.

There is no stipulated time period for the duration of the extradition process; it varies according to the characteristics of each case.

Who can and cannot be extradited from Brazil? 

The Federal Constitution stipulates in Article 5 that: “No Brazilian shall be extradited, except the naturalized ones in the case of a common crime committed before naturalization, or in the case there is sufficient evidence of participation in the illicit traffic of narcotics and related drugs, under the terms of the law.”

This means that a born Brazilian will never be extradited, regardless of the crime committed in another country.

A naturalized Brazilian may be extradited in two situations: when he or she committed a common crime before becoming a Brazilian citizen or when he or she was involved in illicit drug trafficking.

For foreigners in Brazil, their cases must be analyzed individually, taking into account the laws of their country of origin and Brazilian legislation.

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Is it possible to extradite a foreigner with a Brazilian child? What about someone married to a Brazilian citizen?

Yes, according to STF (Brazilian Supreme Court) ruling 421, even if a foreigner is married to a Brazilian or is a parent of a Brazilian child, they can still be extradited.

What law governs the extradition process in Brazil? 

Every extradition process must comply with the provisions of the Migration Law, Law No. 13,445, of May 24, 2017, and observe what was agreed between Brazil and the requesting country when there is a treaty between the two.

Brazil has already signed extradition agreements with several countries, which means that specific rules must be followed according to the country that is making the extradition request.

To consult all the extradition agreements already made by Brazil, click here.

Currently, Brazil does not have an extradition agreement with any Arab country

If the requesting state does not have an extradition treaty with Brazil, the provisions of Decree-Law No. 394 of April 28, 1938, which regulates extradition in the country, must be adopted, provided that there is a promise of reciprocity between the countries.

Thus, even if the country requesting extradition does not have a treaty with Brazil, extradition may be granted if the request meets the criteria established in Brazilian law.

In what cases can a foreigner not be extradited? 

Decree-Law No. 394 provides for cases in which extradition will not be granted. They are:

• I – When it is not an offense under Brazilian law or the law of the requesting 
• State. 
• II – When Brazil is competent, according to its laws, to judge the offense. 
• III – Brazilian law imposes a prison sentence of less than one year for the offense, including attempted, co-authorship, and complicity. 
• IV – When the extraditee is being prosecuted or has already been convicted or acquitted in Brazil for the same offense that determined the request. 
• V – When the offense has been prescribed, according to the law of the requesting State or Brazilian law. 
• VI – When the extraditee has to answer, in the requesting country, before a special court or tribunal. 
• VII – When the offense is: a) purely military; b) against religion; c) a political or opinion crime.

This means that Brazil does not extradite a foreigner when the crime for which he or she is being accused is not a crime in Brazil or his or her sentence would be less than one year.

Similarly, the country does not extradite a foreigner when Brazil has the ability to prosecute them or has already tried, convicted, or acquitted them; when the crime is time-barred; when the foreigner must appear before a special court or tribunal; and when the crime is purely military, religious, political, or a crime of opinion.

For which crimes in Arab countries would a foreigner not be extradited from Brazil? 

There are several crimes listed in the legislation of Arab countries that would not be grounds for extradition if a foreigner came to live in Brazil.

This is because they are crimes in some Arab countries but not in Brazil; they are crimes of lesser offense according to Brazilian law or; they are purely military, political, opinion-related, or against religion.

They are:

• Fornication (sex between unmarried people); 
• Adultery (sex between a married person and someone who is not their spouse); 
• Sodomy (anal sex); 
• Homosexuality (relations between people of the same sex); 
• Sexual misconduct (sexual behaviors considered unwelcome);
• Incestuous relationships;
• Prostitution; 
• Conspiracy to overthrow the Islamic regime; 
• Political dissent (dissatisfaction with or opposition to the policies of a governing body); 
• Sabotage (a deliberate action aimed at weakening a polity); 
• Rebellion (refusal of obedience or order); 
• Apostasy (renunciation of religion or belief); 
• Blasphemy (insulting the values of Islam and its prophets)); 
• Speculation (betting on games); 
• Alcohol consumption; 
• Producing or preparing foods, beverages, cosmetics, or sanitary items that lead to death when consumed or used; 
• Production and publication of pornography; 
• Recurrent false allegations of capital sexual crimes that cause the execution of an innocent person; 
• Certain military offenses (such as cowardice or aiding the enemy); 
• “Waging war against God” (threatening someone with a weapon or “causing terror” in any way that creates public insecurity); 
• “Spreading corruption on Earth” (causing any crack in social order; causing physical harm to an individual’s or public or private property’s integrity; spreading corruption or prostitution on a large scale); 
• Espionage (obtaining privileged government information); 
• Treason (acts that undermine the sovereignty of the country).

Next, you will see that Brazil also does not extradite foreigners when they are convicted or could be sentenced to death, life imprisonment, or corporal punishment. 

For the extradition of a foreigner for a crime that could be punished in such a way, the requesting country needs to promise not to apply such penalties.

In what cases is there a death penalty in Brazil?

The Brazilian constitution only authorizes the death penalty for military crimes committed during declared times of war.

In other words, any non-military crime committed during a war situation in Brazil cannot be punished with the death penalty. Therefore, there is no crime punished with the death penalty in Arab countries which is also considered a crime under Brazilian law.

Thus, no foreigner who is sentenced to death in any Arab country or who may be sentenced can be extradited from Brazil, regardless of their crime.

For Brazil to extradite a foreigner to an Arab country, the requesting State must ensure that the death penalty will not be applied to the extradited person.

In what cases is there a life sentence in Brazil?

There is no life imprisonment in Brazil.

In fact, Brazilian law establishes a maximum limit of 40 years for the imprisonment penalty, so it is illegal for anyone to be imprisoned for more than 40 years in the country.

Therefore, Brazil will not extradite a foreigner who is sentenced to life imprisonment in the requesting country, regardless of the crime committed.

In order for Brazil to extradite a foreigner to an Arab country, the requesting state must adjust the penalty respecting the limit of 40 years of imprisonment provided for in Brazilian legislation, or commit to not applying a penalty exceeding 40 years.

In the case of Arab countries that also apply corporal punishments, such punishments cannot be applied to the extradited foreigner. Either the country promises not to apply this type of penalty, or Brazil will not grant extradition.

In summary

In short, it can be said that the main reason why Brazil does not extradite many foreigners to Arab countries is because there is a big difference between the legislation. However, there are also other hypotheses.

Therefore, the main reasons why extraditing foreigners to rare countries is rare in Brazil are as follows:

• The crime is political (committed with ideological purposes against the sovereignty of the State), military, related to Opinion or religion;
• The act committed is not considered a crime in Brazil or is not punishable under Brazilian law (when the crime committed is not a crime in Brazil or when the offender at the time could not be punished by Brazilian law, such as minors under 18 years old);
• The crime has already become time-barred. It is worth noting that Brazil has a shorter prescription period compared to many Arab countries, especially regarding crimes committed during extrajudicial, judicial, or bankruptcy proceedings. 
• The foreigner may or has already been sentenced to death or life imprisonment;
• The penalty for the crime is less than one year under Brazilian law;
• The foreigner may face human rights violations;
• The foreigner can be tried in Brazil or has already been acquitted in the country.