Extradition involves the cooperation between nations, in which one country requests the transfer of an individual from another country to face criminal trial or serve a pre-established sentence. This mechanism aims to suppress crimes through international legal cooperation, preventing individuals who have committed a crime from seeking refuge in another country, and ensuring that they do not escape punishment.
It’s important to highlight that extradition is different from expulsion or deportation, as it only occurs to individuals who are subject to or have been sentenced in criminal proceedings.
Under Brazilian law, this process can occur in two distinct ways: active or passive extradition. Active extradition is when the Brazilian government requests the delivery of an individual who is located abroad and is considered a fugitive. In such case, Brazil must present documents proving the existence of the criminal proceedings or adverse sentence, and it must provide guarantees that the individual will not be subject to inhumane or degrading treatment and that they will be given a fair trial.
On the other hand, passive extradition occurs when a foreign nation requests that an individual who is located in Brazilian territory and is considered a fugitive is delivered to its custody. In this case, Law No. 13.445/2017 (Immigration Law) establishes the criteria for the extradition of foreigners in the country, and it is up to the Supreme Court to review the request by analyzing if the legal requirements for extradition have been met and whether the measure violates the individual’s fundamental rights.
The Brazilian Constitution also addresses extradition, by setting forth in its Article 5, LI, that Brazilian citizens born in Brazil cannot be extradited, while naturalized Brazilian citizens and foreigners can be extradited if the requirements set forth by law are met.
In this scenario, the extradition of naturalized Brazilian citizens is only possible in two cases: if the crime was committed before naturalization or in the case of drug trafficking, even if the crime was committed after naturalization.
Regarding the extradition of foreigners, it is necessary for the crime to have been committed within the territory of the requesting country or that the criminal laws of such country apply to the extraditee, and there must be an investigative or criminal proceeding, or a sentence of imprisonment against the extraditee in the requesting country.
On the other hand, item LII, Article 5 of the Brazilian Constitution prohibits the extradition of foreigners for political or opinion-related crimes. And Article 82 of the Immigration Law establishes the circumstances under which extradition will not be granted, namely:
- the act prompting the extradition request is not considered a crime in Brazil or in the requesting country;
- Brazil has jurisdiction, according to Brazilian laws, to judge the crime attributed to the individual;
- the crime prompting the extradition request carries a punishment of less than two years under Brazilian law;
- the extraditee is undergoing a trial or has already been convicted or acquitted in Brazil for the same offense that based the request;
- the crime has prescribed under Brazilian law or under the law of the requesting country;
- the offense constitutes a political or opinion-related crime;
- the extraditee is to be tried before a court or tribunal of exception in the requesting country;
- the extraditee has been granted refuge or asylum in Brazil.
In fact, no country is obligated to extradite an individual within its territory; however, a series of international agreements between nations establish procedures and conditions for extradition.
In this regard, Brazil has bilateral extradition agreements with over 30 countries, and in cases where there are no agreements, extradition requests may be honored if there is a promise of reciprocal treatment in similar cases.
Some examples of agreements and treaties entered by Brazil regarding extradition include the Inter-American Convention on Extradition (OAS), the Brazil-United States Extradition Treaty, the Mercosur Extradition Agreement, the Brazil-Portugal Extradition Treaty, and the United Nations Convention against Transnational Organized Crime (Palermo Convention).
A recent and widely discussed case is the enforcement of foreign criminal sentences and extradition involving former footballer Robson dos Santos, better known as Robinho. He was sentenced by the highest court of the Italian Justice system to nine years in prison and a fine of 60,000 euros for rape.
Robinho was in Brazil at the time of the sentence, resulting in Italy’s extradition request being denied under Article 5, LI, of the Federal Constitution, as it does not allow for the extradition of Brazilian citizens born in Brazil.
As a result, the Italian Courts requested that the Superior Court of Justice validate the sentence in order to transfer the execution of the punishment to Brazil, based on articles 100 and 101 of the Immigration Law. Consequently, on March 20, 2024, the Special Court Session of the Superior Court of Justice validated the Italian sentence and ordered the immediate enforcement of the punishment.