Brazil

The case concerned an extradition request by Brazil for the prosecution of the requested person in relation to aggravated sexual violence against a minor allegedly committed in Brazil between 2011 and 2018. The requested person challenged the judgment granting extradition, arguing that the Court of Appeal had failed to assess the risk of inhuman or degrading detention conditions in Brazil and should have requested information on the specific prison facility of destination, overcrowding, sanitary conditions and minimum living standards. The Italian Supreme Court held that the burden lies on the requested person to provide objective, precise, reliable and up-to-date evidence capable of raising a concrete risk of treatment incompatible with fundamental rights. General references to prison conditions, NGO reports or press articles were held insufficient, especially where the material relied upon did not contain specific and individualised information concerning the requested person’s likely detention. Since no concrete elements had been produced to undermine mutual trust between the States, the Court held that the Court of Appeal was not required to seek further information from the Brazilian authorities and dismissed the appeal.

The case concerned an extradition request submitted by Turkey, based on reciprocity, for the prosecution of a naturalized Brazilian citizen accused of membership in the armed terrorist organisation FETÖ/PDY. The Brazilian Supreme Federal Court refused extradition on two independent grounds. First, the Court held that the requested person had acquired Brazilian nationality in January 2012, whereas the alleged offence was said to have occurred in April 2017. Since the offence was allegedly committed after naturalization, and there was no allegation of prior common crime or drug trafficking, Article 5, LI, of the Brazilian Constitution created an absolute constitutional bar to extradition. Secondly, the Court found that the Turkish request did not clearly and precisely individualize the requested person’s conduct. The allegations referred generally to his links with cultural and educational activities, alleged use of ByLock, bank movements and alleged association with FETÖ/PDY, but failed to explain with sufficient specificity his role, hierarchy or concrete contribution to the alleged terrorist organisation. The Court held that such lack of individualization prevented verification of double criminality under Brazilian law. The extradition request was therefore unanimously refused.

The absence, in the requesting State, of effective protection of the guarantee of judicial impartiality, viewed from an objective standpoint, constitutes a bar to surrender, since that guarantee forms part of the essential core of the right to a fair trial and of the rights of the defence, in accordance with the fundamental principles of the legal order, as guaranteed by the Constitution and by supranational instruments. In the case at issue, the person injured by the offences charged against the requested person had sat on the judicial panel as reporting judge, had also dealt with the preliminary issue of his own incompatibility, had issued the arrest warrant, and had drafted the extradition request.

A person against whom a final decision on extradition from Portugal to Brazil had already been issued filed an application for international protection. This application was rejected by the competent administrative body and was appealed to the court, whose decision is pending. The person was lawfully detained under the extradition proceedings. However, he requested that his detention be lifted while a decision on his application for international protection is pending, notwithstanding the fact that a final decision on extradition has already been issued.

Vague assertions regarding prison conditions and an alleged risk to the life of the appellant, who is the subject of the extradition request, without any specific details, do not require or necessitate that assurances be sought from the requesting State, particularly as this was never raised in the opposition submitted. As the Convention on Extradition between Member States of the Community of Portuguese-Speaking Countries does not provide for the possibility of refusing extradition on the grounds that granting it might entail placement in a prison with substandard conditions—a possibility reinforced by a generic allegation—it is not clear why there would be a need to order an investigation that was never suggested, except at the appeal stage. Furthermore, the refusal of extradition on security grounds is not supported in this regard, either in the Convention or in other subsidiary provisions.

Extradition from Portugal for the serving of a prison sentence for drug traficking in Brazil.I. The “humanitarian” clause provided for in Article 18(2) of Law No. 144/99 of 31 August does not apply to requests for extradition made under the Extradition Convention between Member States of the Community of Portuguese-Speaking Countries, signed in Praia on 23 November 2005 (and approved by Assembly Resolution No. 49/2008 of 18 July 2008), which, being a special convention, takes precedence under the terms of Article 3 of Law No. 144/99 of 31 August, as that Convention has exhaustively defined the situations in which extradition may be refused, albeit on an optional basis.II. Thus, extradition requested by one of the signatory states to the Convention on Extradition between Member States of Portuguese-speaking Countries may only be refused if one of the grounds for its inadmissibility, as set out in Article 3 of the said Convention, applies, or, on an optional basis, if one of the situations provided for in Article 4 of the Convention applies.III. Opposition to extradition is only valid if the person to be extradited is not the person sought or if one of the situations provided for in either Article 3 or Article 4 of the Convention applies; therefore, if the opposition does not fall within the legally prescribed grounds, any proceedings requested to substantiate such opposition must be dismissed as futile pursuant to Article 56(1), a contrario to Law No. 144/99 of 31 AugustIV. The family, employment or health situation of the person to be extradited does not meet the requirements for either mandatory or discretionary refusal of extradition, since it does not fall within any of the situations set out in Articles 3 and 4 of the Convention; consequently, the objection is invalid, and the requested extradition must be granted, provided that the remaining legal requirements are met.

Under the Italy–Brazil Extradition Treaty, the validation of a provisional arrest and the imposition of coercive measures do not require a formal extradition request at the initial stage. Pursuant to Article 13(4), such measures lapse only if the extradition request and supporting documents are not received within forty days from the notification of the arrest. Accordingly, a mere preliminary request is sufficient at the validation stage, provided that the complete extradition request is submitted within the prescribed time limit.

The existence of a flight risk, which justifies the application of a measure restricting personal liberty, must be supported by a reasoned assessment based on specific, concrete, and indicative elements pointing to a real possibility that the requested person may abscond clandestinely. The severity of the penalty that the person would face upon surrender does not, in itself, constitute a relevant factor for this purpose. In the present case, the reasoning provided by the Court of Appeal is merely apparent, as it relied on a factor—the seriousness of the offence—which is not, per se, unequivocally indicative of a flight risk, while at the same time failing to verify the existence of elements capable of establishing the concreteness and present nature of such risk, or, conversely, its absence. As to the type of decision, the Court considers that the preferable solution is to make the annulment of the order for lack of reasoning entail the immediate release of the requested person.

In matters of compensation for unlawful detention, the deprivation of personal liberty suffered within the framework of passive extradition proceedings may be deemed unjust even where those proceedings do not end with a decision refusing extradition, but with a purely procedural ruling, such as a decision of no grounds to proceed due to the requested person’s departure.

In the absence of a treaty between the States concerned, or where an applicable treaty does not provide for an assessment by the requested State of the existence of serious indications of guilt, the Italian judicial authority must not confine itself to a merely formal review of the documentation attached to the extradition request. Rather, it must ascertain that the request sets out the reasons why, within the framework of the requesting State’s procedural system, it has been considered probable that the requested person committed the offence forming the basis of the extradition. This requirement is satisfied where the competent judicial authorities have reconstructed in detail the time, place, manner of commission and underlying motives of the alleged criminal conduct, identifying the existence of multiple indicia of guilt in the results of police investigations, witness statements, and the findings of forensic medical examinations carried out on the victim’s body.

All the relevant causes of interruption or suspension of the statute of limitations foreseen both in Portuguese Law and in Brazilian Law apply to extradition proceedings governed by the Extradition Convention between the Member States of the Community of Portuguese-Speaking Countries. The Extradition Convention between the Member States of the Community of Portuguese-Speaking Countries foresees the only applicable grounds for refusal of extradition, which means that other grounds for refusal listed in Portuguese Law are not applicable.

The case concerned an extradition request submitted by Türkiye against a Turkish national accused of involvement in the Fethullah Gülen movement, terrorist financing, qualified fraud, membership of an armed organisation and offences against the Turkish constitutional order. The Supreme Federal Court of Brazil held that the request did not satisfy the requirements for extradition because the requesting State had failed to describe the facts with sufficient clarity and precision, without identifying the requested person’s specific functions, hierarchical position or role within the alleged criminal organisation. This lack of specificity prevented a proper assessment of double criminality. The Court also found that the factual context had a political connotation and that, in light of the institutional situation in Türkiye and concerns regarding judicial independence, there were insufficient guarantees that the requested person would receive a fair, impartial trial before an independent judge. In addition, Brazil’s refugee authority had recognised the requested person as a refugee on the basis of facts coinciding with those underlying the extradition request, triggering non-refoulement protection. The extradition request was therefore refused and the precautionary measures previously imposed were revoked.

With regard to the protection of the fundamental rights of the person whose surrender is sought — and, in particular, the right to health — the Court cannot confine itself to verifying whether, in the requesting State, healthcare facilities are adequate to meet the person’s therapeutic needs, but must also take into account the concrete impact and, therefore, the potential adverse effects of the surrender procedure on the individual’s health condition, including, for example, the difficulties and possible complications arising from the transfer abroad or the need to ensure continuity of ongoing medical treatment.

The Supremo Tribunal Federal refused an extradition request submitted by China against a Chinese national accused of unlawful collection of public deposits under Article 176 of the Chinese Criminal Code. Although the Court found that the requirements of double criminality, double punishability and the remaining conditions for extradition were satisfied, it denied extradition due to the concrete risk of life imprisonment or even the death penalty, in the absence of formal diplomatic assurances regarding commutation of such penalties. The STF further held that the requesting State had failed to demonstrate its ability to guarantee the extraditee’s right to due process of law and to a fair, impartial and independent trial. According to the Court, the inability of the requesting State to ensure the right to a fair trial constitutes, in itself, sufficient grounds for refusing extradition.

The case concerned an extradition request submitted by Türkiye against a naturalised Brazilian citizen of Turkish origin, accused of supporting the Fethullah Gülen movement by depositing money in Bank Asya and thereby allegedly financing a terrorist organisation. The Supreme Federal Court of Brazil first held that the requested person’s naturalised Brazilian citizenship did not, in itself, bar extradition, since the alleged conduct predated his naturalisation. However, the Court found that the double criminality requirement was not satisfied because the alleged acts occurred in 2013–2014, before Brazil enacted its anti-terrorism legislation in 2016, and the more severe criminal law could not be applied retroactively. It further held that, if the conduct were analysed under Brazil’s former National Security Law, it would amount to a political offence, for which extradition is constitutionally barred. Finally, the Court considered that the political and institutional situation in Türkiye created serious doubts as to whether the requested person would receive a fair trial with due process before an independent and impartial tribunal. The extradition request was therefore refused.

In matters concerning the extension of extradition, the conditions for granting the request are not met where, although only a summary assessment of the evidence submitted by the requesting State is required, the accompanying documentation does not provide a sufficient prima facie evidentiary basis as to the unlawful origin of the assets involved in the alleged self-laundering offence. The mere purchase of assets abroad, the failure to comply with tax disclosure obligations, and the temporal connection with offences already adjudicated are not, in themselves, sufficient to establish that the reinvested funds originated from the predicate offences.

For the purposes of assessing the risk of inhuman or degrading treatment, sources of knowledge may properly include documents and reports produced by non-governmental organisations whose reliability is generally recognised at the international level, such as Amnesty International and Human Rights Watch. According to reports from various non-governmental sources, including Amnesty International and Human Rights Watch, the situation in Brazilian prisons has long been endemically characterised—particularly in certain state districts, including Espírito Santo, which is specifically relevant to the present proceedings—by practices of violence and abuse against detainees, carried out both by internal criminal gangs, known to and tolerated by prison authorities, and by prison officers themselves. This occurs within a broader structural context of dilapidation and inadequacy of prison facilities, resulting in severe overcrowding and deficient sanitary and hygienic conditions, which in turn facilitate the spread of serious infectious diseases.