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Cablegate: Brazil: Moving Forward On a New Extraditions

DE RUEHBR #1525/01 3291948
R 241948Z NOV 08




E.O. 12958: N/A

C. STATE 79928
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.

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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

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

17. (U) This cable was cleared with State/L/LEI and DoJ/OIA.


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