BRAZIL: MOVING FORWARD ON A NEW EXTRADITIONS

UNCLAS SECTION 01 OF 06 BRASILIA 001525 SENSITIVE SIPDIS STATE FOR L/LEI JOHNSON, WHA/BSC, WHA/CHRIS MCMULLEN, DEPARTMENT OF JUSTICE FOR SWARTZ AND OIA E.O. 12958: N/A TAGS: KJUS KCRM CJAN PREL CVIS SNA SUBJECT: BRAZIL: MOVING FORWARD ON A NEW EXTRADITIONS FRAMEWORK REF: A. BRASILIA 1069 ¶B. BRASILIA 1035 ¶C. STATE 79928 ¶D. BRASILIA 999 ¶E. STATE 76939 ¶1. (SBU) Summary: From October 27-29, Clifton Johnson, Department of State Assistant Legal Adviser for Law Enforcement and Intelligence, Thomas Black, Associate Director for South American affairs of the Department of Justice,s Office of International Affairs (OIA),and Magdalena Boynton, and Nicolette Romano from OIA visited Brasilia in order to address with issues that had been complicating the successful execution of extraditions from Brazil to the United States, particularly Brazilian requests for assurances that fall outside the scope of the bilateral extradition treaty (reftels). The delegation met with Federal Police officials, Ministry of Justice, Public Ministry officials, members of the Brazilian Congress, Ministry of External Relations (Itamaraty) officials, and Supreme Court (STF) justices and found a receptive audience that, at least rhetorically, expressed a willingness to work with the United States to prevent Brazil from becoming a safehaven for criminals seeking to avoid punishment. The delegation accomplished its four main objectives, which were to reinforce the need to continue our strong law enforcement partnership; to sensitize Brazilian audiences to the problems Brazil,s extra-treaty requests impose on the U.S. legal system; to seek out ways to ameliorate some of the legal hurdles by negotiating new standard language to be used in extradition cases; and finally, to develop a long-term engagement strategy towards lowering Brazilian barriers to the extradition of nationals. End summary. -------------- Assurances -------------- ¶2. (SBU) A principal objective of the delegation was to find a way to minimize Brazilian requests for assurances in extradition cases. As indicated in reftels, a series of recent extradition cases were jeopardized by Brazilian requests for assurances that were not necessary, beyond the scope of the bilateral treaty, and/or inconsistent with our extradition practice with other countries around the world. The discussions focused on the following six assurances that Brazil has been requesting as a routine matter in all extradition cases: -- That United States guarantee that a person extradited from Brazil will not serve more than 30 years. -- That the United States agrees to comply with the five provisions of Article 91 of Brazilian Law 6815/80, which states that countries requesting extradition will: not charge the extradite with a crime not included in the extradition request; compute the time in prison that the extradite served in Brazil; commute to a life sentence any death penalty sentence, except in cases where Brazilian law allows its application (superseded by STF requirement to commute to 30 years sentences longer than that); not extradite to a third country without Brazil,s consent; and not consider any political motive to aggravate the sentence. -------------- 30 Years Limit on Sentencing: Stuck for Now -------------- ¶3. (SBU) Of the various assurance requests currently impeding the smooth processing of extraditions, the most difficult one to resolve relates to the STF,s decision to require an assurance that persons extradited from Brazil will not serve BRASILIA 00001525 002 OF 006 a sentence of more than 30 years. (Note: The Brazilian constitution gives the power to allow extraditions to the STF. After the STF rules on the legality of the extradition, and allows it to proceed, the decision to authorize the extradition itself resides with the President. End note.) The STF based its decision on the constitution,s prohibition of life sentences (though the constitution is silent on the maximum term of years that can be imposed) and a provision in the penal code providing a 30 year maximum on the time a person can serve in prison. ¶4. (SBU) The penal code limit of 30 years dates back to law decree passed in 1940 (2.848/40) when life expectancy in Brazil was 42 years. It was not until 2004, however, when the STF decided to apply the 30-year maximum term to extradition cases. (Note: The 30-year limit applies to time served, not to the sentence. In Brazil, someone can be sentenced for longer than 30 years, but they cannot serve more than that. End note.) Since then, the STF has been imposing, as a condition for approving extraditions, that the requesting country had to commit to commute a sentence that exceeded 30 years. Several bills have been proposed over the years raising this limit to 40 or 45 years, but there has been little enthusiasm or motivation for extending the maximum term, and they have not been enacted. ¶5. (SBU) During the delegation,s meeting with National Secretary of Justice Romeu Tuma Jr., the number two official in the Ministry of Justice, he noted that, although these requests for assurances fall outside the bilateral extradition treaty, the STF ultimately decides whether extradition requests comply with Brazilian law. As a result, the executive,s hands are tied if the STF imposes conditions based on the STF,s understanding of Brazilian law and the constitution. Asked about the STF,s decision to apply the 30 year maximum to extradition cases, STF justice Ellen Gracie Northfleet observed that it was justice Celso Mello, whom she called the STF,s extraditions expert, who wrote the decision based on the constitutional principle of treating Brazilians and non-Brazilians equally (i.e., if the person would be subject to a maximum penalty in Brazil, then that limit should apply to wherever he is extradited). ¶6. (SBU) The delegation explained that assurances with respect to 30 years are particularly difficult for the United States because they are not provided for in the bilateral treaty and sentencing is largely at the discretion of the judge. The delegation noted that U.S. prosecutors and judges had a difficult time understanding why a Brazilian constraint on sentencing in Brazil, that was not provided for in the treaty, should apply to a U.S. trial of a non-Brazilian for serious crimes committed against U.S. victims in the United States. The delegation indicated that the U.S. was prepared to note in its extradition requests when the eligible sentence for the underlying offense was below 30 years -- thereby obviating the need for an assurance request in such cases. The delegation also noted that, to the extent Brazil was able to reduce its routine request for multiple assurances in most cases, it would be easier to seek 30-year assurances in those cases where they were truly necessary. As discussed below, Brazilian interlocutors were receptive to decreasing the routine request of assurances where the relevant information could be provided to Brazil through separate means that enabled them to satisfy their domestic legal requirements. -------------- Article 91: A Way Forward in Short Term -------------- ¶7. (SBU) The remaining assurances often sought by Brazil arise from the requirement contained in Law 6815/80 BRASILIA 00001525 003 OF 006 ("Estatuto dos Estrangeiros" or Foreigners Law) obligating countries to abide by the terms of Article 91 of that law. During talks with Secretary Tuma, the delegation discussed the difficulty that these conditions created for U.S. authorities, particularly since the United States cannot enforce a commitment to abide by foreign law. Instead, these commitments have to be provided using either the terms of the extradition treaty or U.S. law. ¶8. (SBU) Tuma stated maintaining and strengthening the relationship was most important to him, and that he would be happy to work with the United States on any changes in language that would facilitate extraditions. The delegation urged Brazil to reduce the number of routine requests for assurances so as to focus requests on exceptional cases. The delegation noted that the United States was prepared to consider ways to provide Brazil with the information necessary to show how the various provisions of Article 91 were met so as to obviate the need for separate assurance requests. One approach proposed by the delegation would be for the United States to issue a diplomatic note or document that described the provisions in the treaty and U.S. law that applied to all extradition cases and satisfied multiple requirements of article 91. Extradition cases could then, as needed, reference this note. The United States could also include in its original extradition requests statements, when applicable, confirming that the charges at issue did not involve the death penalty and/or life (or 30 year) sentences. Such an approach would reduce the number of assurances sought; allow the USG to more effectively focus on, consider, and consult with prosecutors and courts with respect to assurances not addressed by these mechanisms (e.g. 30 year assurances); create a routine way of handling these cases; and avoid frenzied last minute negotiations on the eve of an extraditee's transfer, as was the case in the Juan Carlos Ramirez Abadia case. Tuma was receptive to such an approach and the delegation agreed to prepare a draft of a diplomatic note along the lines described. The idea of crafting a diplomatic note to address some of the assurances was also brought up in meetings at Itamaraty with Counselor Ralph Peter Henderson, head of Itamaraty,s Immigration Division, and with STF Justice Ellen Gracie Northfleet, and both agreed that it would be worthwhile approach. -------------- Extradition of Nationals: Impossible, but... -------------- ¶9. (SBU) Over the course of the delegation's meetings, various interlocutors explained the difficulty of changing the prohibition against extradition of Brazilian nationals that is contained in the Brazilian constitution. Article 60 of the Brazilian constitution lays out the process for amending the constitution; but it also limits, or outright prohibits, amendments from being made to certain clauses of the constitution known as the "Clausulas Petreas" (essentially, inalterable clauses). One of these clauses is the bill of rights which includes the protection against extradition. As a result, the only way to alter the fundamental individual right of Brazilians not to be extradited from Brazil is for a new constituent assembly to be convened to draft a new constitution. A simple amendment to the constitution, a difficult process to begin with, will not do. ¶10. (SBU) The issue of extradition of nationals arose in nearly every meeting with the delegation in the context of Brazilian suggestions that the existing 1960,s era extradition treaty be updated to modernize the covered offenses. The delegation said that, while the United States shared an interest in expanding the scope of the treaty, any such initiative was contingent on changes in Brazilian law BRASILIA 00001525 004 OF 006 that would permit the extradition of nationals. The delegation noted that the regional and world wide trend in extradition was towards extraditing nationals and that this was a fundamental element of U.S. extradition policy. The delegation noted that recent notorious cases of fugitives living in the United States for many years, holding U.S. nationality, committing serious crimes in the United States against other Americans, and then fleeing to another country where they sought to claim foreign nationality to shield themselves from extradition created a very negative impression in the United States and the Congress. The delegation made particular reference in this context to the case of Claudia Hoerig, who fled to Brazil after killing her husband in Chicago. As a result, it was not conceivable that the U.S. Senate would approve a new or amended treaty that did not provide for an extradition partner to extradite its nationals in the same manner that the United States was prepared to extradite its citizens. ¶11. (SBU) All of the delegation's interlocutors agreed that the issue of changing the constitution to permit the extradition of Brazilian nationals is highly unlikely to happen anytime soon. Itamaraty was the most negative, with Counselor Henderson stating matter-of-factly with regard to the issue of extraditing nationals, "we don,t really have an issue, because it is, in fact, impossible, therefore, there is nothing to discuss." Most interlocutors, however, recognized that it was a problematic provision in the extradition context and suggested ways that its impact could be moderated. Itamaraty encouraged the United States, in cases involving naturalized Brazilians, to provide information, if available that might provide a basis for the GOB to revoke an individual's Brazilian nationality, based on differential treatment afforded natural-born and naturalized Brazilians. For example, both Counselor Henderson and Federal Prosecutor Oliveira de Almeida, noted that a naturalized Brazilian could have his citizenship removed upon provision by the United States of information that the citizen committed crimes prior to obtaining Brazilian citizenship, or committed narcotics-related crimes, even after obtaining the citizenship. Another instance that could result in a favorable extradition of a Brazilian to the United States would be in a situation where a Brazilian national obtained a second citizenship and in the process gave up Brazilian citizenship. If the United States can document that the person took steps that amounted to a voluntary surrender of Brazilian citizenship at the time of obtaining U.S. citizenship, the Ministry of Justice and make a determination that their Brazilian citizenship was renounced, and thus the person becomes eligible for extradition. -------------- Long-Term Hope Moving Forward -------------- ¶12. (SBU) Several of the meetings shone a light on a possible way forward in the long-term that could further reduce complications stemming from the 30 year assurances, and from some extradition cases involving naturalized Brazilians. According to Marcio Pereira Pinto Garcia, a Senate aide, the Supreme Court,s decision requiring 30 year assurances in extradition cases was not compelled by the constitution and involved an overly expansive interpretation of the penal code. In fact, he noted that their interpretation could violate Brazil,s commitments to the International Criminal Court, which allows life sentences. Further, he noted that there is some room to play around with legislatively both on the 30 years and the extradition of nationals. For one, the Congress could update the 30 year limit to conform to today,s longer life expectancies. Congress could also carve out an exception in the penal code that excludes extradition BRASILIA 00001525 005 OF 006 cases from complying with the 30 years, or otherwise permits extraditions pending an assurance that the country requesting extradition will only apply a term of years sentence -- a longer one than 30 years, but not a life sentence -- which would not be ideal, but would improve the situation for the United States somewhat. ¶13. (SBU) On the issue of naturalized Brazilians, Garcia also noted that naturalized Brazilians can be extradited if they committed a common crime before being naturalized or if they were involved in a crime involving narcotics, according to the constitution, and as set down in law. Perhaps, he suggested, this can be further fleshed out in legislation to take the broadest possible view of what constitutes a narcotics-related crime, hence expanding the universe of crimes for which citizenship can be revoked. ¶14. (SBU) Three other interlocutors suggested a variation on an idea for engaging on this issue in the long term. Jorge Barbosa Pontes, head of Interpol at the Federal Police, agreed with the delegation that Brazil,s restrictions on extraditing nationals and its imposing of 30 year limits on prison terms was wrongheaded and sent the wrong message regarding Brazil,s tolerance of international crime. He observed that it would be extremely difficult to change the extradition of nationals, but that a movement or conferences should be organized that could begin discussing these issues. Separately, former head of Brazilian Federal Police (DPF) and now Senator Romeu Tuma (PTB, Brazilian Labor Party, government coalition; of Sao Paulo; and father of National Secretary of Justice Tuma),and Federal Deputy Marcelo Itagiba (PSDB, Brazilian Social Democracy Party, opposition; of Rio de Janeiro),also a career DPF officer and formerly Rio de Janeiro,s State Public Security Secretary suggested holding a symposium on extradition issues. Finally, STF Justice Ricardo Lewandowski suggested that a bi-national commission might be an appropriate venue to hash out some of these issues. -------------- Comment: Seeds Planted -------------- ¶15. (SBU) The message exchanged between the delegation and Brazilian officials from Supreme Court Justices, to Ministry of Justice officials, to Senators and Federal Deputies, to Federal Prosecutors and the Federal Police, was consistent: the United States and Brazil have a good law enforcement relationship and it is in both countries interests to do everything possible to improve it. There was also agreement among all parties on next steps. The State/L/LEI-DOJ/OIA delegation agreed to craft language that hopefully will serve as the basis for a diplomatic note or other official USG communication that would front-load several assurances issues, particularly those related to Article 91. Additionally, in individual extradition cases the United States will front-load information related to sentencing, thus obviating (or at least minimizing) the need for Brazil to request assurances at the back end of the process. While such an approach will not address assurance issues in all cases -- particularly with respect to 30 year assurances -- it should make Brazilian assurance requests more exceptional. Its effectiveness will depend on how receptive the Ministry of Justice is to the proposed note and its ability to bring other players in the Brazilian extradition process on board. We are optimistic that the GOB will be able to move forward with us on this, as the delegation succeeded in the laying the groundwork for such an approach in all of its meetings and received preliminary buy-in to move ahead with it. ¶16. (SBU) Comment, continued. For meeting our longer term objectives, the idea of holding conferences or symposia BRASILIA 00001525 006 OF 006 merits consideration. During Post,s meetings with legal and law enforcement contacts as well as during the delegation,s visit, Post perceived that some of the issues involving extraditions are not necessarily well understood even within Brazilian legal circles. To wit, most of our interlocutors (including National Justice Secretary Tuma, Federal Deputy Itagiba, and Federal Prosecutor Oliveira de Almeida) mistakenly stated that the sentence limitation of 30 years is constitutional limitation, rather than a penal code one, and some did not realize that it applied to extraditions via a fairly recent STF decision, rather than being long-standing precedent. Taking into account Senate aide Garcia,s analysis, a symposium could bring to light for legislators and other legal experts how there is, in reality, plenty of room either to lift the restrictions legislatively, or bring them up to date from their almost 70-year old framework. For the symposium to be effective, however, it has to have a regional presence, with experts from other countries that are similarly affected and have found ways to change their laws and/or constitutions to remove such constraints and comply with their ICC obligations. Such a conference would have to be carefully structured and focused, however, to avoid highlighting the inconsistencies in international practice, rather than the growing trend toward more consistent practice regarding terms of extradition and extradition of nationals. Embassy will begin to explore the possibility of a symposium (or several) where broader issues relating to extradition of nationals and the extradition practice of other countries can be explored in a way that might encourage Brazil to reconsider its own approach. The fact that STF and the Federal police offered somewhat similar concepts, suggests that there will be a willing cohort of law enforcement and legal figures who could participate in such a forum and that there could be receptive and broader audience for the message the State/L/LEI-DOJ/OIA delegation brought to Brasilia. End comment. ¶17. (U) This cable was cleared with State/L/LEI and DoJ/OIA. KUBISKE