Extradition It is a practice of cooperation between nations in which one State requests another to hand over a person so that they can answer for their crimes or so that they can serve their sentence. O Brazil has legislation that deals with extradition and determines that native Brazilians cannot be extradited. Naturalized Brazilians and foreigners can be extradited when they meet some legal requirements.
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Topics in this article
- 1 - Summary on extradition
- 2 - What is extradition?
- 3 - Active and passive extradition
Extradition summary
Extradition is cooperation between nations so that individuals can be handed over to another nation to answer for their crimes in court.
Extradition is not the same as expulsion or deportation.
Native Brazilians cannot be extradited.
Naturalized Brazilians and foreigners can be extradited.
There is active and passive extradition.
What is extradition?
Extradition is a international cooperation practice in which one State requests another to hand over a person to the authorities of the country making the request. The extradition request occurs when the requesting State wishes for a person to be tried criminally or to serve an already established sentence.
Upon acceptance of this request, the requested State delivers the indicated person to what the requesting State take the appropriate legal measures. International law establishes that no State is obliged to extradite an individual who is on its territory, but a series of international agreements between nations determine how this can to happen.
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It is important to clarify that extradition is not the same as expulsion or deportation, as extradition only happens to individuals who are responsible for a crime in another State. And for this to occur, the requesting State needs to formalize the extradition request with the requested State through diplomatic means. Furthermore, the requested State may reject the extradition request.
Expulsion occurs when a foreigner threatens, in some way, national order and security, so his expulsion is understood as something essential for national interests and security. Deportation happens when authorities identify foreigners andm situation irregular within the national territory. A deported foreigner is not seen as a risk to national security, as in the case of expulsion.
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Active and passive extradition
They exist two types of extradition, in accordance with Brazilian legislation: active extradition and passive extradition. Extradition is active when the Brazilian government requests the extradition of a person who is fugitive from Brazilian justice abroad. Passive extradition is when a foreign country demands the extradition of an individual who is fugitive in Brazilian territory. Furthermore, there is a law in our country which establishes the criteria for extradition of foreigners in our territory.
A federal Constitution also deals with extradition, stating that native Brazilians (individuals born here and who are not naturalized)cannot be extradited. Naturalized Brazilians and foreigners can, yes, be extradited by the government.
However, there are some exceptions in which the Brazilian government can deny someone's extradition. Brazilian law determines that individuals will not be extradited case:
the fact that motivates the extradition request is considered a crime in Brazil or in the requesting State;
Brazil is competent, according to Brazilian laws, to judge the individual's crime;
the crime that motivated the extradition request has a sentence of less than two years under Brazilian law;
the person being extradited is already facing justice for a crime in Brazil;
the extradited person's crime has already been prescribed according to Brazilian law or the law of the requesting State;
the crime committed is a political or opinion crime;
the person being extradited will face an exceptional court in the requesting State;
the extradited person has refugee and asylum status in Brazil.
Naturalized Brazilians can be extradited as long as the crime committed by them was carried out before their naturalization as Brazilian or if they were involved with the illicit drug trafficking. This is present in item LII of article 5 of the Federal Constitution. Oanother law that deals from the extradition in our country is the Law of Migration, known as Law No. 13,445, of May 24, 2017.
For extradition to take place, the competent authorities must make a formal request and contact the other government so that the case can be deliberated. Brazil has bilateral extradition agreements with more than 30 countries. In the case of countries with which there is no agreement, Brazil can comply with extradition requests as long as it receives a promise of reciprocity in similar cases.
By Daniel Neves
History teacher
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