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Cablegate: Next Steps On Abadia Extradition Case and Other

VZCZCXRO5011
OO RUEHRG
DE RUEHBR #1069/01 2192058
ZNY CCCCC ZZH
O 062058Z AUG 08
FM AMEMBASSY BRASILIA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 2236
RUEAWJA/DEPT OF JUSTICE WASHDC IMMEDIATE
INFO RUEHRG/AMCONSUL RECIFE IMMEDIATE 8343
RUEHRI/AMCONSUL RIO DE JANEIRO IMMEDIATE 6480
RUEHSO/AMCONSUL SAO PAULO IMMEDIATE 2575
RHMCSUU/FBI WASHINGTON DC IMMEDIATE
RUEABND/DEA HQS WASHDC IMMEDIATE

C O N F I D E N T I A L SECTION 01 OF 02 BRASILIA 001069

SIPDIS

STATE FOR L JOHNSON AND L/LEI, WHA/BSC, WHA/CHRIS MCMULLEN,
DEPARTMENT OF JUSTICE FOR SWARTZ AND OIA, DEA FOR OGC JOHN
WALLACE, DEA REGIONAL DIRECTOR US EMBASSY LA PAZ PATRICK
STANKEMP

E.O. 12958: DECL: 08/06/2018
TAGS: KJUS KCRM CJAN PREL CVIS SNAR BR
SUBJECT: NEXT STEPS ON ABADIA EXTRADITION CASE AND OTHER
EXTRADITION ASSURANCE REQUESTS

REF: A. AUGUST 5 2008 EMBASSY
BRASILIA-STATE/WHA-STATE/L/LEI-DOJ/OIA
CONFERENCE CALL
B. BRASILIA 01035 AND PREVIOUS

Classified By: Deputy Chief of Mission Lisa Kubiske for reason 1.5 (d)

1. (C) Summary and Action Request. Post appreciates
Department and DOJ assistance in determining next steps on
securing the extradition of Juan Carlos Ramirez Abadia
("Chupeta") and requests the guidance discussed ref A on an
urgent basis, as ongoing investigations into Abadia's
activities in Brazil could halt extradition proceedings
indefinitely. Post agrees that the Abadia case should be
considered exceptional with regard to the assurances the
Brazilian Supreme Court (STF) is seeking, and that the
problems associated with providing such assurances should be
addressed separately. Post looks forward to working with
L/LEI and DOJ to engage the GOB on this issue. It is
important to note that contacts are unanimous with regard to
the constitutional authority of the STF to require such
assurances, and stress that the GOB would consider
extradition without complying with the STF order to be
unconstitutional. End summary and action request.

2. (SBU) Post appreciates assistance of WHA, L/LEI, and DOJ
(Ref A) in determining next steps on securing the extradition
of Juan Carlos Ramirez Abadia ("Chupeta") (Ref B). Post
understands that State/L/LEI, in consultation with DOJ/OIA is
preparing language for a new diplomatic note, as the
Brazilian Government has informally requested, renewing the
United State's request for Abadia's extradition, as a way of
prompting immediate extradition, rather than after Abadia
serves his sentence in Brazil. Post further understands that
we may be able to offer, in this particular case, the
assurances the Brazilian Federal Supreme Court (STF) has
demanded as a condition for extradition. These assurances
include a commitment on the part of the United States that
Abadia will not serve more than 30 years in prison, as well
as the commitment that the United States will credit Abadia
with any time served in Brazil.

3. (C) Our Ministry of Justice and Federal Police contacts
have stressed that time is of the essence in the Abadia case.
Abadia was questioned over the weekend regarding a planned
escape attempt from the prison where he is serving his
sentence. Further, he continues to be investigated by the
Federal Police for crimes he may have committed in Brazil and
new reports of his illegal activities while in prison are
surfacing each day. Either of these investigations could
lead to further charges being filed against him in Brazilian
courts within days, making it bureaucratically and
politically significantly more difficult for President Lula
to approve his extradition. Moreover, the longer the
extradition process takes, the more likely the reasons for
the delay will be leaked to the press. In either case, the
result could be an indefinite delay in Abadia's extradition
to the United States.

4. (SBU) Post agrees that actions we take with regards to
Abadia should be considered unique and exceptional, and that
we will need to discuss separately with the GOB the broader
issue of assurances. We have made known to our Brazilian
interlocutors at every opportunity that the United States is
extremely uncomfortable with requests for assurances that
fall outside the extradition treaty imposed by the Brazilian
Government as conditions for approving U.S. extradition
requests. Furthermore, we have noted that if the United
States does decide to provide the assurances in the Abadia
case, Brazil should consider it an exceptional circumstance
and that it should not expect the United States to routinely
provide these assurances.

5. (C) It is important to note that Embassy contacts have
unanimously stressed that the Brazilian constitution gives
the STF full authority to impose the conditions it has placed
on extradition. Minister of Defense Jobim, a former Federal
Deputy, Minister of Justice, and Chief Justice of the STF
personally insisted to the Ambassador that there is no
constitutional means around the STF ruling. Ambassador
Oswaldo Portella, a Ministry of External Relations detailee

BRASILIA 00001069 002 OF 002


to the Ministry of Justice and the Minister's international
advisor, told our FBI Legal Attache that he recognized that
these assurances fell outside the extradition treaty, but
that the Government's hands were tied. Any suggestion on our
part that the GOB work around the STF order will be seen as a
request for the GOB to take unconstitutional action.
Moreover, the STF condition regarding assurances pertaining
to a maximum penalty of 30 years is based on STF precedent
going back several years. As far as Post has been able to
determine, the STF started applying the Brazilian penal code
-- which limits to 30 years the maximum amount of time
someone can serve in prison -- to extradition cases in a case
involving an extradition requested by Chile in 2004. Since
then, the STF has included these requests for assurances as a
condition for granting extraditions in their orders approving
extraditions.

6. (C) With regard to other assurances that will have to be
provided before the Brazilians will approve Abadia's
extradition -- including those required under Article 91 of
Brazilian 6.815/80 -- it is Post's understanding that
Washington also is preparing guidance for Post to submit to
the Brazilian Government. It is important to note that
although these fall outside the Extradition Treaty, they are
required under Brazilian law and Brazil requires them of
every country. Furthermore, when pressed to explain why
Brazil is imposing extra-treaty commitments as conditions for
extradition, our Brazilian contacts have responded that
Article XI of the bilateral Extradition Treaty guarantees
that the law of the requested state is the one that shall
apply when deciding if an extradition will be approved.
Nevertheless, our Brazilian contacts at the Ministry of
Justice (MoJ), including the National Secretary of Justice
(an Under-Secretary level official within the MoJ), the chief
of the MoJ's Department of Foreigners, and the chief of the
MoJ's Extraditions Division have all indicated that they are
amenable to working with the United States to come up with
compromise language that can satisfy both parties.
SOBEL

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