Practice Relating to Rule 161. International Cooperation in Criminal Proceedings
Section D. Political offence exception to extradition
Brazil’s Law on the Legal Status of Foreigners (1980), as amended in 1981, states:
Article 77. Extradition shall not be granted when:
VII - the act [based on which the extradition is requested] constitutes a political offence;
§ 1° The exception provided for in article VII shall not hinder the extradition when the act constitutes mainly an ordinary crime, or when the ordinary crime, although connected to a political offence, constitutes the main fact.
§ 2º The Supreme Federal Court is the only competent body to assess the nature of the crime.
§ 3° The Supreme Federal Court may find that [the following acts] do not constitute political offences: attacks against heads of State or any authorities, acts of anarchism, terrorism, sabotage, kidnapping, or acts which constitute war propaganda or propaganda in favour of the use of violence for subverting the political or social order.
In 2009, in the Battisti extradition case, the Plenary Court of Brazil’s Supreme Federal Court was called upon to decide on the extradition of Cesare Battisti, requested by Italy. The Court held that the crimes based on which the extradition had been requested were not political offences but ordinary crimes, and granted the requested extradition, subject to the discretionary decision of the President of the Republic. Regarding the political offence exception to extradition, Justice Cesar Peluzo, rapporteur of the case, stated:
[T]he crimes for which … [Battisti] had been convicted [in Italy] are characterized by an absolute lack of political motivation, intense premeditation, extreme violence and severe social intimidation. The nature of such crimes does not correspond in any way to the concept of political offence which impedes the extradition of foreign citizens, at least according to the definitions consolidated in the precedents of this Court (Ext. n. 493, Rapporteur: Justice Sepúlveda Pertence, DJ of 03.08.1990; Ext n. 694, Rap. Just. Sydney Sanches, DJ of 22.08.1997; Ext n. 794, Rap. Just. Mauricio Correa, DJ of 24.05.2002 and Ext n. 994, Rap. Just. Marco Aurélio, DJ of 04.08.2006).
I am aware that the extreme violence or exceptional cruelty which characterized the ordinary crimes attributed to the sought person would not alone be sufficient for the extradition to be granted. Particularly if, despite having had other persons as victims, these crimes had resulted from a political action conceived in the context of a fighting against a totalitarian regime, whether within a commotion, political rebellion, civil war or analogous circumstances.
This hypothesis was exhaustively analysed by this Court in the judgment Ext. n. 493 (Rapporteur: Justice Sepúlveda Pertence). Justice [Sepúlveda Pertence] … stated in his vote:
… For a long time, it was understood that ordinary crimes, including violent ones, if committed in the course of a rebellion, were characterized by the political nature which was essential to such rebellion … [This view] was supported by all European countries which, between 1872 and 1876, refused to extradite to France the rebels of the Commune who were wanted for objectively ordinary crimes, such as robbery and murder.
86. Dated from that time is … the statement from Stuart Mill in his famous speech before the House of Commons: … “A political offense is any offense committed in the course [or] furthering [of] civil war, insurrection or political commotions”.
87. But it is also certain that it has been about a century, as Jiménez de Asúa demonstrated, … “that there has been a persistent tendency to exclude the most severe crimes from political offences, even when they have a political objective or connection”, including murder, the most severe injuries and, in general, the cruelest [acts] of personal violence.
88. This exclusion, however, is never absolute. Acts committed in the fighting within the context of a rebellion or civil war have been systematically considered not to be covered by such exclusion, … unless they are prohibited by the customs of war.
89. As documented by Quadri … , in September 180, the Institute of International Law, in a meeting in Oxford, adopted a resolution according to which, “the acts which have all the characteristics of ordinary crimes (murder, arson, robbery) shall not be excluded from extradition due only to the political intention of the perpetrators”, but … in order to assess the acts committed in the course of a political rebellion, an insurgency or a civil war, “one should consider whether such acts would be accepted or not by the customs of war”.
90. The topic was revised by the Institute … [twelve] years later, in a meeting in Geneva, which led to the adoption of the resolution of 8 September 1892 … [according to which] … there should only be extradition for acts committed in the course of an insurgency or civil war by one of the parties involved and in the interest of its cause – and only once the civil war has ended – , if they constitute heinous barbarous acts or acts prohibited by the laws of war …
91. This formula was later adopted with the same wording in the famous French extradition law of 1927 … , and was subsequently adopted in several conventions.
93. The formula of the Institute of International Law, of 1892, … was criticized for its … overly casuistic and … restrictive approach in the Study on Political Offences, of 1960, by the Inter-American Juridical Committee …
94. Thus, the … Inter-American Juridical Committee made the following proposal to the XI Inter-American Conference, which was adopted by … [this] Court [in the extradition case n. 232 (Cuba)] … :
“1) Political offences are those offences against the organization and functioning of the State.
2) Political offences are [also those] offences which are connected to the above ones. Connection exists when the offence aims at (i) implementing or facilitating the offence mentioned in item (1) above, (ii) achieving impunity for political offences.
3) Barbarous crimes and vandalism, as well as any offences which exceed the lawful limits in attacking and defending, are not political offences.
4) Genocide is not a political offence, pursuant to the United Nations convention.”
Well, the [present] case does not involve … the same elevated political purposes according to which the Court rejected the extradition request in … [the above-mentioned] case. In that case, the crimes of murder attributed to the invaders of the La Tablada barracks were “an inevitable outcome of the violence in combat dictated by the necessities of the rebel action or of the resistance to it”; they did not exceed, in the light of the rules of war, “the lawful limits in attacking and defending”, nor can they be characterized as “barbarous crimes and vandalism”.
The wilful murders committed with premeditation by the person whose extradition was requested [in the present case] are not related … to the altruistic purposes which characterize those political movements directed at implementing a new economic and social order. They reveal rather a simple intention of personal vengeance.