What Is the Brazilian Law on Extradition Today?

By Ian Millard, Barrister 
[also Admitted to the Bars of New York and Anguilla]

"I heard there was an English guy, 
I think his name was Biggs..."

The voice on the other end of the telephone 
was an American client, talking on a cellphone 
from his Cadillac, somewhere in the Deep South. 
As a UK/US lawyer dealing with offshore and 
international issues,I had become accustomed 
to having unusual and even bizarre cases 
dumped on me. There had been the Sudanese 
owner of a Russian bank, thrown into the 
Matrosskaya Tishina ("Sailor's Silence") 
prison in Moscow, with a way out offered 
and priced at a mere eight million dollars 
and no questions asked. His family, for whom 
I had appeared on an unexceptional English 
High Court corporate matter, virtually begged 
me to accept the case. Then there had been the 
American who had invested in a tractor plant 
near Vladivostok making good profits...but who 
had never bothered to consider whether he might 
be liable for U.S. Federal taxation and was 
desperate to legally avoid such liability. 
Now this.


The Cadillac driver was what is known in 
America as a "gambler", meaning someone who 
accepts bets, in English terms a kind of 
(usually unlicensed) bookmaker. In most 
American states, off-track betting is 
illegal. If the activity is carried on 
interstate, then Federal laws might be 
infringed, including the ubiquitous RICO 
anti-racketeering law. The law relating to 
internet-based gambling is still being 
developed.


It transpired that the client had read 
about Ronnie Biggs as someone who had 
escaped extradition to the UK mainly by 
reason of having fathered a child in 
Brazil. The client wanted to know 
whether he might do the same, if 
necessary. The lack of a Brazilian 
child would, he assured me, not be a 
problem, despite his mature years 
and lack of a Brazilian wife or 
girlfriend: "Ian, I do have health 
problems, but I guess my gun still 
has ammo!"


Brazil and the USA signed a bilateral 
extradition treaty in 1961, which came into 
effect in 1964. The Brazilian Ministry 
of Justice gave a publicly available legal 
overview on the treaty and extradition in 
general as recently as 1999, from which the 
following can be taken as applicable:

a. No foreigner can be extradited from Brazil 
unless the crime of which he is accused in the 
country wishing extradition is also a crime in 
Brazil;

b. The crime concerned must carry a penalty of 
at least one year's imprisonment in both the 
country requiring extradition and Brazil;

c. If extradited, the foreigner must not be 
tried in any special commission or tribunal; 
in addition to which

d. If the accused suffers from a 
life-threatening medical condition, 
extradition will probably not be permitted.


If the country requiring extradition 
gets past the above obstacles, it will have 
to give official undertakings that:

a. The extraditee will not be charged with 
further offences, the commission of which 
predate the crime forming the subject-matter 
of the extradition request;

b. The extraditing country will have to credit 
the extraditee with any time spent in custody 
in Brazil awaiting judicial disposal of the 
extradition or related matter;

c. The extraditing country will not re-extradite 
the extraditee to any third country.


The U.S. case which was most directly relevant 
seemed to be that of State v. Pang [940 P.2d 1293 
(Washington 1997); 118 S. Ct. 628 (1997)]. 

In that case, Pang, a suspect in a case of arson 
in which four firemen died during a warehouse 
blaze, fled to Brazil. Meanwhile, the relevant 
county prosecuting attorney had filed four 
charges of first degree murder against Pang. A 
fugitive warrant and, later, an arrest warrant, 
were issued. Later, a charge of arson was added. 


The Brazilian Federal Supreme Court granted 
extradition of Pang on the charge of arson but 
not on the murder counts. Pang was then 
extradited to the State of Washington. The 
United States then appealed to the Brazilian 
Federal Supreme Court seeking clarification of 
the extradition order. The Court, however, 
rejected this appeal on the ground that no 
clarification was needed because there had been 
no contradiction or obvious error in the original 
decision. 


The honorable judge of the King County 
(Washington State) Superior Court held that the 
charge of arson should not be severed from those 
of murder and that, therefore, Pang should be 
tried on all counts. Pang's appeal to the 
Washington Supreme Court was upheld, however, on 
several grounds, one of which was that Pang should 
only in any event be tried for the specific offence 
included in the extradition order, reliance being 
placed on the terms of the US-Brazil bilateral 
extradition treaty. The Washington Supreme Court 
was obliged therefore to follow the lead of 
the Federal Supreme Court of Brazil. The State 
of Washington then petitioned the U.S. Supreme 
Court for certiorari; this was denied.


The higher decisions in Pang have been criticized 
academically in the United States; also, four judges 
of the Washington Supreme Court dissented. However, 
it can be inferred, it is submitted, from the 
determinations in Pang, that the higher courts of 
the United States are minded to give almost "full 
faith and credit" to the Brazilian Federal Supreme 
Court, perhaps on the unspoken basis that if courts 
in the United States ride rough over the extradition 
orders made in Brazil, the Brazilians might well 
start becoming far less compliant in granting 
extradition at all, if the United States is thought 
to be travelling beyond the agreed and accepted ambit 
of the extradition treaty and the orders 
made pursuant to it.


The above "hoops" do not, however, complete the 
obstacle course for the extraditing state, because, 
even after all of the above criteria have been 
surmounted, no foreigner will be extradited from 
Brazil until the Brazilian Federal Supreme Court 
has ruled on the "legality and appropriateness" of 
the extradition [Brazilian Law no. 6815 of 19 
August 1980, Article 83].


So my American client seemed to be in a pretty 
good legal position anyway, especially bearing 
in mind his health problems. What, however, of 
his idea of becoming the father of a Brazilian 
child? 

A convenient starting point would, needless to 
say, be the notorious Ronald Biggs case, decided 
by the [Brazilian] Federal Supreme Court in 1974. 
It is essential to note that, at that time (though 
not now), Brazil had no bilateral or other treaty 
of extradition with the United Kingdom, of which 
Biggs, the fugitive "Great Train Robber", was a 
"subject" (now, "citizen"). That situation, then, 
already contrasts with the situation which pertains 
now (and would have pertained in 1974) had Biggs been 
a U.S. citizen, in that, as already noted, there does 
exist a 1961 bilateral treaty with the United States 
on extradition.


At the time of decision of the Biggs case, Brazil 
had a different Constitution, one of several it has 
had in its existence as an independent State. The 
present Constitution came into effect only in 1988. 
The Constitution in force in 1974 had a clause denying 
extradition of those foreigners who were fathers of 
Brazilian children. Biggs was the father of a child by 
a Brazilian citizen. The present Constitution has no 
such clause, although it does have clauses giving 
strong and even "absolute" priority to the rights to 
education, welfare etc of Brazilian children, as well 
as clauses strongly supportive of parental and family 
rights, so it might be argued that, in a case where an 
otherwise extraditable foreigner has a Brazilian child, 
he should be saved from extradition in a situation where 
he constitutes the sole or even main economic or family 
support of the child: see 1988 Constitution, Chapter 
VII, Articles 226, 227, 229.


Would there be there a distinction between a situation 
where the foreigner resisting extradition is the natural 
father of a Brazilian child and one where the foreigner 
is the adoptive father? It is submitted that there 
would be no difference in principle, in that the present 
Brazilian Constitution at least specifically forbids 
discrimination amongst children who are born legitimately, 
illegitimately or who have been adopted: Brazilian 
Constitution, Chapter VII, Article 229, paragraph 6. 
So the nationality of the father would, it is submitted, 
make no difference to the outcome. And that was the 
advice in fact given in to the matter of the American 
gambler.


Overall, it can be seen that Brazil gives significant 
"benefits of the doubt" to foreigners resisting 
extradition, particularly where narcotics trafficking 
offences are not alleged. That is even so relative to 
other neighbouring States, such as Argentina: a number 
of persons in recent years have redomiciled in Brazil 
from Argentina for precisely that reason.

The "child" aspect of the overall question can be 
seen to be a minor gloss on consideration of the 
global question. Having a Brazilian child could not 
harm the chances of a foreigner resisting extradition 
from Brazil to the United States, but would be unlikely 
to materially help those chances, except in a case so 
finely divided in fact or law that the final fact of 
the foreigner being the sole or major support of the 
child might be placed on the scales.


In the case of the client in question, a number of 
factors assisted him: it turned out that, in any event, 
the kind of offences with which he might have been 
charged, while carrying potentially heavy penalties 
in the USA, especially at Federal level, in fact 
carried minor penalties in Brazil, probably not 
exceeding three months' imprisonment. Also, 
his first port of call in the USA would probably 
have been the American institution of the Grand 
Jury which might constitute one of those "special 
commissions or tribunals" under Brazilian law. 
There again, the client had fairly significant 
health problems, constituting a useful silver 
lining. The paternity idea would only add to his 
existing chances.


The end of this story must remain an anti-climax, 
in that my advice to the American gambler was the 
last I heard of the matter and a number of years 
have now passed. I do not know whether he was ever 
indicted, ever fled to Brazil, nor, indeed, ever 
managed to father a Brazilian child: 
"Moe delo malenki" ("Not my business"---Russian slang).







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Contact:
 ianrmillard@hotmail.com

copyright 2004, Ian R Millard, Barrister, Rougemont Chambers, Exeter, Devon UK EX2 4DG