Brazil

Brazil requested extradition for prosecution in connection with sexual offences involving minors. The appellant challenged the formal sufficiency of the arrest documentation and alleged a risk of torture or inhuman treatment because of prison conditions in Brazil. The Prosecutor General’s Office found that the translated material sufficiently reproduced the foreign arrest warrant and held that general reports on detention conditions did not establish a real, current and individual risk. It further considered Brazil’s express assurance against torture or cruel, inhuman or degrading treatment sufficient and recommended confirmation of the extradition decision.

Brazil requested extradition for prosecution for an aggravated homicide committed by asphyxiation. The appellant relied on alleged death threats from the Comando Vermelho criminal organisation, as well as prison conditions and alleged defects in the arrest documentation. The Prosecutor General’s Office held that the foreign warrant was adequately reproduced, that general concerns did not establish a real and current personal risk, and that the alleged threats had not been supported by precise evidence or timely evidentiary requests. In light also of Brazil’s assurance against ill-treatment, it recommended confirmation of the extradition decision.

Brazil requested the extradition of a former federal parliamentarian for the enforcement of a sentence concerning unlawful carrying of a firearm and unlawful coercion committed with a firearm. The appellant challenged surrender on political-offence and persecution grounds, alleged unfairness before the Brazilian Supreme Federal Court, disputed double criminality, and relied on prison conditions and serious health concerns. The Court rejected the objections concerning the political character of the offences, fair trial, double criminality, and the general conditions at the designated women’s prison, finding the information and assurances on those matters sufficiently specific. It nevertheless quashed the judgment and remitted the case because the lower court had not obtained precise, individualised information showing that the requested person would receive continuous specialist monitoring, appropriate medication, and adequate treatment for her documented medical conditions.

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 Brazilian Supreme Court rejected Iran’s request for the extradition of a national accused of a non-violent offence, giving decisive weight to the best interests of his wholly dependent minor daughter, who was born in Brazil and is a Brazilian citizen. The Court found that Iran had repeatedly failed to provide concrete information on how the child’s safety, welfare, subsistence and family unity would be protected under Iranian law if both parents were extradited. It also held that the requesting State had not formally assumed all mandatory commitments required by Article 96 of the Brazilian Migration Law, including crediting the time spent in pre-extradition detention in Brazil. The ongoing armed conflict further increased the humanitarian risk to the child if she were indirectly compelled to accompany her parents to Iran.

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.

Brazil requested the extradition of the requested person from Belgium for the enforcement of a final sentence of eight years and eight months’ imprisonment for attempted homicide. The Belgian Council of State suspended the ministerial decision authorising extradition, finding serious grounds concerning both the adequacy of the decision’s reasoning on limitation of the sentence and, principally, the risk of treatment contrary to Article 3 ECHR arising from the requested person’s medical condition and access to adequate healthcare in Brazilian prisons. The Court held that the authorities had failed to take account of relevant medical evidence and to dispel doubts raised by recent, objective material concerning detention conditions and access to medical care in Brazil. Given the potential exposure of the requested person to treatment contrary to Article 3 ECHR, the Court found the urgency requirement satisfied and ordered the immediate suspension of the extradition decision.

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.

The case concerned Brazil’s request for the extradition of a former Brazilian parliamentarian, also holding Italian citizenship, for the execution of custodial sentences imposed by the Brazilian Supreme Federal Court for offences relating to unlawful access to judicial information systems and ideological falsification. The defence opposed extradition on several grounds, arguing that the proceedings in Brazil had violated fair trial guarantees, that the requested person had been subjected to political and judicial persecution, that the Brazilian Supreme Federal Court lacked impartiality, and that detention in Brazil — in particular in the women’s prison facility indicated by the Brazilian authorities — would expose her to a risk of inhuman or degrading treatment. The Court of Appeal of Rome first held that the late production of documents by the parties was admissible, since the strict five-day time limit for defence memoranda does not apply to documentary evidence in extradition proceedings and the material had been acquired and discussed at the hearing. On the merits, the Court found that the conditions for extradition under the Italy–Brazil treaty and Italian procedural law were satisfied. It rejected the objections based on fair trial and political persecution, holding that the extradition court could not reassess the merits of the foreign criminal proceedings and that the material relied on by the defence did not establish a flagrant denial of justice or a discriminatory prosecution. As to detention conditions, the Court considered the specific information and assurances provided by Brazil concerning the intended women’s detention facility, including separation from other categories of prisoners, access to medical care and educational activities, monitoring by institutional bodies, and available safeguards against abuse. The Court therefore concluded that the alleged risks had not been shown to be concrete, individualized and sufficiently serious to bar extradition. Extradition was granted, subject to the ordinary treaty and statutory safeguards on speciality and subsequent surrender.

The Court of Justice of Santa Catarina considered whether a request to transfer the execution of a Brazilian sentence to Portugal could be processed despite a final Portuguese decision authorising the convicted person’s extradition to Brazil. The Court held that sentenced-person transfer is an autonomous and potentially alternative mechanism of international legal cooperation and that the prior extradition decision did not make the transfer request legally inadmissible. It therefore reversed the lower court’s refusal and authorised the request to be forwarded to Brazil’s central authority, the Department of Asset Recovery and International Legal Cooperation, for administrative assessment and formal consultation with Portugal. The Court did not order the transfer itself, which remained subject to the agreement of both States and verification of the applicable statutory and treaty requirements. A subsequent decision of the Criciúma Criminal Enforcement Court confirmed that conditional release does not extinguish the remaining sentence and therefore does not prevent the administrative processing of the transfer request. The existing supervision conditions were maintained pending the decision of the competent Brazilian and Portuguese authorities.

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.