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Who cannot be extradited to Europe

The extradition of foreigners to Europe is an increasingly common reality. Foreigners who come to Brazil and are afraid of being extradited to Europe have reasons to worry. Although not all crimes will lead to the extradition of foreigners to Europe, the extradition relationship between Brazil and the continent is mostly solid and friendly.

In this text, you will understand why a foreigner who commits crimes in European countries is much more likely to be extradited than foreigners who commit crimes in other countries.  Check it out!

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Author: Mariana Cruz de Lemos

Why is it more common for a foreigner to be extradited to Europe than to other countries?

Brazil and European countries, for the most part, have very similar legislation regarding the types of crimes that exist. Thus, conduct that is considered criminal in Europe will probably also be considered criminal in Brazil, even if it has a different name.

In addition, Brazil has a strong and well-defined relationship with Europe regarding extradition, with several states on the continent having well-established extradition treaties with Brazil, which facilitates the process.

Despite this, not every extradition request to Europe will be accepted, as will be seen below.

Which crimes in Europe are not considered crimes in Brazil? 

As mentioned, Europe and Brazil have very similar definitions of crimes, however, this does not mean that there are no exceptions.

It’s advisable to seek a qualified lawyer to investigate the particularities of your case, as there are significant differences depending on which European country is being compared.

However, we can mention the main crimes:

  • Paying for sex – a crime in Albania, Croatia, France, Iceland, Northern Ireland, Norway, Sweden, the United Kingdom, and several other European countries – is not a crime in Brazil;
  • Engaging in prostitution – a crime in countries such as France and England – is also not a crime in Brazil, meaning that the foreigner would not be penalized if they came to live in the country;
  • In Russia, “illegal entrepreneurship,” “creation, use, and distribution of malicious computer programs,” and “invasion of the life of a police officer” are considered crimes, but not in Brazil.
  • The crime of recruiting mercenaries – provided for in countries such as Russia and Portugal – is also not covered by Brazilian legislation;
  • Participating in protests unauthorized by the government – a crime in countries such as Belarus – is also not a crime in Brazil.
  • Similarly, unlike in Belarus, journalists reporting on unauthorized protests against the government would not be committing a crime in Brazil.
  • Denial of the Holocaust – a crime in Austria, Germany, Hungary, Poland, and other countries – or rehabilitation of Nazism – as the crime of discrediting what was determined by the Nuremberg Tribunal is called in Russia – are also not considered criminal practices in Brazil.

It’s worth mentioning that in addition to practices that are crimes in Europe but not in Brazil, there are also crimes in European countries that are considered crimes under Brazilian law, but do not face penalties as severe as in Europe.

This is the case with the crime of “propaganda or public display of Nazi symbols,” a serious crime in countries such as Germany and Belarus, but not in Brazil.

Likewise, the following crimes provided for in Belarus have equivalents in Brazilian legislation, but do not have penalties as severe:

  • Bribery of participants and organizers of sporting or spectacular commercial competitions
  • Animal cruelty
  • Commercial espionage

How does extradition work? 

An 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.

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.

The current status of Brazil’s bilateral extradition agreements with European countries is that they have agreements in place with several nations. These nations include Belgium, Spain, France, Greece, Italy, Lithuania, Portugal, the United Kingdom, Northern Ireland, Romania, Russia, Switzerland, and Ukraine.

If there is no extradition treaty between Brazil and the requesting state, then the regulations outlined in Decree-Law No. 394, enacted on April 28, 1938, must be followed, as long as there is a promise of reciprocity between the two countries.

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:

  • When it is not an offense under Brazilian law or the law of the requesting 
  • State. 
  • When Brazil is competent, according to its laws, to judge the offense. 
  • When Brazilian law imposes a prison sentence of less than one year for the offense, including attempted, co-authorship, and complicity. 
  •  When the extraditee is being prosecuted or has already been convicted or acquitted in Brazil for the same offense that determined the request. 
  • When the offense has been prescribed, according to the law of the requesting State or Brazilian law. 
  •  When the extraditee has to answer, in the requesting country, before a special court or tribunal. 
  • 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.

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 Europe that is also punished with the death penalty in Brazil. 

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

For extradition to occur, the requesting European country must ensure that the extradited person will not be subject to the death penalty.

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’s illegal for anyone to be imprisoned for more than 40 years in the country.

Thus, Brazil does not extradite foreigners to Europe who are sentenced to life imprisonment in the requesting country, regardless of the crime committed.

For the extradition of the foreigner to take place, the requesting European country must adjust the penalty to respect the 40-year imprisonment limit provided for in Brazilian law or commit to not applying a penalty exceeding 40 years.

Likewise, if a country has corporal punishment, Brazil will only accept the extradition request if the requesting country commits not to use such punishment.

In summary

It can be said, therefore, that a foreigner who commits a crime in Europe and comes to Brazil will have a greater chance of being extradited than if they had committed a crime in another country due to the similarities between the legislations.

However, it is important to note that there are still cases in which a practice is considered a crime in Europe but not in Brazil, such as paying for sex, prostitution, unauthorized protests against the government, denial of the Holocaust, illegal entrepreneurship, creation, use, and distribution of malicious computer programs, and invasion of a police officer’s life.

There are also cases where the European crime has an equivalent in Brazilian legislation but carries a lighter penalty than in Europe. This is the case with the propaganda or public display of Nazi symbols, and the bribery of participants and organizers of sports or spectacular commercial competitions, for example.

In addition, there are other reasons why a request for extradition of a foreigner to a European country may be denied:

  • When the crime is already time-barred (the limitation period in Brazil is shorter compared to many European countries, especially in relation to crimes committed in the context of extrajudicial, judicial, or bankruptcy recovery);
  • When the crime is political (a crime committed with ideological purpose against the state), of opinion, military or religious;
  • When there is no typicity or punishment in Brazil (when the crime committed is not a crime in Brazil or when the offender at the time could not be punished under Brazilian law, such as minors under 18 years old);
  •  When the foreigner may or has already been sentenced to death or life imprisonment;
  • When the penalty for the crime is less than one year according to Brazilian law;
  • When the foreigner may face violations of their human rights;
  • When the foreigner can be tried in Brazil or has already been acquitted in the country.

Autor Convidado

A Koetz Advocacia convida advogados autores para colaborar em nosso site, para discutir assuntos internacionais e migratórios.

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