The United States of America and the United States of Brazil, desiring to strengthen their friendly relations and to facilitate the administration of justice by the repression of crimes and offences committed in their respective territories and jurisdictions, have agreed to celebrate a treaty of extradition and have nominated for that purpose the following plenipotentiaries:
The President of the United States of America, Mr. Thomas L. Thompson, Envoy Extraordinary and Minister Plenipotentiary near the Government of the United States of Brazil;
and the President of the United States of Brazil, General Dionisio, Evangelista de Castro Cerqueira, Minister of State for Foreign Relations;
who having made known their respective full powers, which have been found in good form, agree upon the following articles:
The Government of the United States of America and the Government of the United States of Brazil mutually agree to deliver up the persons who, having been charged or convicted, as the authors of or accomplices in any of the crimes enumerated in the following article, committed in the jurisdiction of one of the contracting parties, seeks an asylum or be found within the territories of the other; provided, this shall only take place after such evidence of criminality as, according to the laws of the place where the person or fugitive so charged shall be found, would justify his or her apprehension and commitment for trial, if the crime had there been committed.
Extradition shall be granted for the following crimes and offences:
1. Voluntary homicide, when such act is punishable in the United States of America, comprehending the crimes of poisoning and infanticide; murder; manslaughter.
2. Abortion.
3. Rape and other offences against chastity committed with violence.
4. Bigamy.
5. Abduction, willfully and wrongfully depriving any person of natural liberty.
6. Kidnapping or child stealing.
7. Arson.
8. Piracy, by statute or by the law of nations when the state in which the offender is found has no jurisdiction; revolt, or conspiracy to revolt, by two or more persons on board a ship on the high seas, against the authority of the master; to willfully and wrongfully cause shipwreck; to wrongfully and willfully collide with a vessel; to wrongfully and willfully scuttle a vessel for the purpose of sinking it; to wrongfully and willfully destroy a vessel on the high seas.
9. Wrongful and willful destruction or obstruction of railroads which endangers human life.
10. Counterfeiting, falsifying or altering money of any kind, or of legally authorized bank notes which circulate as money; to utter or to give circulation to any such counterfeited, falsified or altered money; the falsification of instruments of debt created by national, state or municipal governments, or of the coupons thereof; counterfeiting, falsifying or altering seals of the federal or state governments; to knowingly use any such instruments or papers.
11. Forgery, the utterance of forged papers; forgery or falsification of official acts of government, of public authorities, or of courts of justice, of public or private instruments; the use or the utterance of the thing forged or falsified.
12. Perjury, or to bear false witness; to suborn or bribe a witness.
13. Fraud committed by a depositor, banker, agent, broker, treasurer, director, member or employee of any company or corporation.
14. Embezzlement, consisting in the misappropriation or theft of public moneys, committed in file jurisdiction of one of the contracting parties, by a public officer or depositary.
15. Embezzlement, or theft of moneys, committed by persons salaried or employed, to the detriment of those who employ them.
16. Burglary, defined to be the act of entering during the night, by breaking or climbing, the dwelling-house of another, with intent to commit, a felony; robbery, defined to be the act of feloniously and forcibly taking from another money or goods of any value, by violence, or putting in fear, and known in the Brazilian Penal Code as roubo.
17. Complicity in or attempts at the commission of any of the crimes specified in the preceding sections, provided that such complicity or attempt be punishable by the laws of the country from whence the extradition is demanded.
Extradition shall not be granted if the offence on which the surrender is demanded be of a political character, or if the fugitive prove that there is an intention to try or punish him for a political crime; nor if the circumstances on which extradition is demanded are connected with political crimes.
The Government from which extradition is demanded will examine the circumstances, to ascertain whether the crime be of a political character, and its decision shall be definite.
The following shall not be considered political crimes when they are unconnected with political movements, and are such as constitute murder, or willful and illegal homicide, as provided for in section 1 of the preceding article:
1. An attempt against the life of the President of the United States of America, or against the life of the Governor of any of the States; an attempt against the life of the President of the United States of Brazil, or against the life of the President or Governor of any of the States thereof;
2. An attempt against the life of the Vice-President of the United States of America, or against the life of the Lieutenant-Governor of any of the States; an attempt against the life of the Vice-President of the United States of Brazil, or against the life of the Vice President or Vice Governor of any of the States thereof.
The person surrendered cannot be tried nor punished in the country -which has obtained the extradition, nor be surrendered to a third country, for trial or punishment therein, for any crime or offence not mentioned in this treaty, nor for one committed previous to extradition other than the crime or offence for which he was extradited, unless such person has been in either case at liberty to leave the country which has obtained the extradition for a month subsequent to trial therein.
Furthermore, such person shall not be tried nor punished for an offence or crime mentioned in this treaty committed previous to the extradition, other than the offence or crime for which he was extradited, without the consent of the Government which has surrendered such person, and the said Government shall be able to demand an exhibition of any of the documents mentioned in Article X of the present treaty.
In like manner the consent of the said Government shall be solicited if the extradition of the offender is requested by a third Government; although this shall not be necessary when the offender voluntarily requests trial or consents to punishment; or if he fails to leave the territory of the country to which he has been surrendered within the period above fixed.
The contracting parties shall in no case be obliged to surrender their own citizens in virtue of the stipulations of the present treaty.
If the person shall be in course of trial, or shall have been convicted of an offence other than that for which the surrender is demanded, extradition shall only take place after the trial shall have been concluded and the sentence fulfilled.
When the person demanded by one of the contracting parties is also demanded by one or more powers on account of crimes and offences committed within their respective jurisdictions, extradition shall be conceded to the one whose request is first received, unless the Government to which the request is made has before agreed by treaty in case of the concurrence of requests to give preference to the country of the person's origin to the gravity of the crime, or to the request which is of oldest date; in whichsoever of these cases the usual rule shall be followed.
Extradition shall be refused when the action or sentence for which the offender is demanded shall have been extinguished by prescription, according to the law of the country to which the request is made, or when such person shall have been already tried and sentenced for the same crime.
All articles found in the possession of the person accused and obtained through the commission of the act with which such person is charged, and -may be used as evidence of the crime for which such person is demanded, shall be seized and surrendered with the person.
Nevertheless, the rights of third persons to the articles so found shall be respected.
Requisitions for the surrender of fugitives from justice accused or convicted of any of the crimes or offences hereinbefore mentioned shall be made by the diplomatic agent of the demanding Government. In case of the absence of such agent either from the country or from the seat of Government such requisition shall be made by a superior consular officer.
When the person whose surrender is requested shall have already been convicted of the crime or offence for which his extradition is demanded, the demand therefor shall be accompanied by a copy of the judgment of the court or tribunal which has pronounced it, duly signed by the judge of the court or president of the tribunal: and the signature of the judge of the court or president of the tribunal shall be authenticated by the proper executive officer, whose official character shall in turn be attested by the diplomatic agent or a superior consular officer of the Government on which the demand is made.
When the person whose surrender is asked is merely charged with the commission of any of the crimes mentioned in the present treaty, the application for extradition shall be accompanied by an authenticated copy of the warrant of arrest issued against such person by the officer duly authorized to do so; and likewise by an authenticated copy of the depositions or declarations made before such officer and setting forth the acts with which the fugitive is charged.
The extradition of fugitives tinder the provisions of the present treaty shall be carried out in conformity with the laws and practice for the time being in force in the state on which the demand is made, without, however, denying recourse to the writ of habeas-corpus.
When the arrest and detention of a person are desired on telegraphic or other information in advance of the presentation of the formal proofs provided for in the preceding article of the present treaty, the following practice shall be observed: In the United States of America application shall be made by the diplomatic agent of Brazil, or in his absence by a superior consular officer, to the Secretary of State, for a certificate stating that request has been made by the Government of the United States of Brazil for the provisional arrest of a person convicted or accused of the commission within the jurisdiction thereof, of a crime or offence extraditable under the terms of the present treaty, which, upon presentation to any competent judicial officer and upon complaint duly made that such a crime or offence has been so committed, it shall be lawful for such judicial officer to issue a warrant for the apprehension of such person; And in the United States of Brazil upon request of the Government of the United States of America, duly made through its diplomatic agent, or in his absence by a superior consular officer to the Minister for Foreign Relations; the provisional arrest shall be made of any person convicted or accused of the commission of a crime or offence extraditable under this treaty.
But if the formal requisition for surrender with the formal proofs hereinbefore mentioned, be not made as aforesaid by the diplomatic agent of the demanding government, or in his absence by a superior consular officer, within sixty days from the date of the arrest of the fugitive, the prisoner shall be discharged from custody.
The expenses incurred in the arrest, detention, examination and delivery of fugitives under this treaty shall be borne by the State in whose name the extradition is sought.
The present treaty shall take effect six weeks after the exchange of ratifications, and shall continue in force six months after one of the contracting parties shall have notified the other of an intention to terminate it.
It shall be ratified and the ratifications exchanged at Rio de Janeiro as soon as possible.
In witness whereof, the respective plenipotentiaries sign the above articles written in the English and Portuguese languages and hereunto affix their seals.
Done and signed in duplicate in the city of Rio de Janeiro, this 14th day of May 1897.
A protocol amending the said treaty in certain particulars was concluded and signed by the respective plenipotentiaries of the United States of America and the United States of Brazil, at Rio de Janeiro, on the 28th day of May, one thousand eight hundred and ninety-eight, as follows:
The undersigned, the Envoy Extraordinary and Minister Plenipotentiary of the United States of America and the Minister for Foreign Affairs of the Republic of the United States of Brazil, met together to-day in the Department of Foreign Affairs and being duly authorized, have agreed to modify in the manner hereinafter indicated the provisions of No. 13 of Article II, of the end of § 2 of Article III, and of the first two paragraphs of Article IV, and the wording of Article IX of the Extradition Treaty signed May 14th, 1897, for the purpose of preventing questions in the execution thereof.
To add in the English text after "broker" the word "manager", corresponding in the Portuguese text to the term "administrador".
To substitute in the English text for the word "definite" the word "final".
To change the wording of the first paragraph of the Portuguese text to read as follows: O indi viduo entregue não poderá ser processado nem punido no paiz que tiver obtido a extradição nem entregue a terceiro paiz por crime on infracção não prevista no presente tratado nem por crime ou infracção anterior á extradição, etc., etc.
To substitute in the second paragraph of the English text the expression "may demand" for "shall be able to demand"
Substitute for the wording of the English text the following: "All articles found in the possession of the person accused, whether obtained through the commission of the act with which such person is charged, or whether they may be used etc., etc."
This protocol shall be submitted for approval to the Congresses of the two countries.
Done at the city of Rio de Janeiro this twenty-eighth day of May A. D. 1898.
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Source: Treaties, Conventions, International Acts and Agreements Between the United States of America and Other Powers 1776-1909. Compiled by William M. Malloy Under Resolution of the Senate of January 18, 1909 Washington : Government Printing Office, 1910. |