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Decree No. 5938, Of 19 October 2006

Original Language Title: Decreto nº 5.938, de 19 de Outubro de 2006

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DECREE NO. 5,938, OF October 19, 2006.

Promulga the Treaty of Extradition between the Federative Republic of Brazil and Ukraine, celebrated in Brasilia, in 21 of October 2003.

THE PRESIDENT OF THE REPUBLIC, in the use of the assignment that gives him the art. 84, inciso IV, of the Constitution, and

Considering that the Federative Republic of Brazil and the Ukraine celebrated, in Brasilia, on October 21, 2003, a Treaty of Extradition;

Whereas the National Congress passed that Treaty through the Legislative Decree no 60, of April 18, 2006;

Whereas the Treaty entered into international force on August 27, 2006, pursuant to the paragraph 2nd of its Article 25;

DECRETA:

Art. 1st The Treaty of Extradition between the Federative Republic of Brazil and Ukraine, concluded in Brasilia, on October 21, 2003, apensed by copy to the present Decree, will be executed and fulfilled as entirely as it contains.

Art. 2nd are subject to the approval of the National Congress any acts that may result in revision of the said Treaty, as well as any supplementary adjustments which, pursuant to art. 49, inciso I, of the Constitution, carries charges or gravy commitments to the national heritage.

Art. 3rd This Decree goes into effect on the date of its publication.

Brasilia, October 19, 2006; 185th of the Independence and 118th of the Republic.

LUIZ INÁCIO LULA DA SILVA

Celso Luiz Nunes Amorim

This text does not replace the one published in the DOU of 10/20/2006

EXTRADITION TREATY BETWEEN THE FEDERATIVE REPUBLIC OF BRAZIL AND THE UKRAINE

The Federative Republic of Brazil

e

The Ukraine

(henceforth named as?Parties?),

Desiring to make more effective the efforts made by the Parties in combating the crime;

Observing the principles of respect for sovereignty and non-interference in the subjects internal of each, as well as the norms of International Law; and

Consent of the need to undertake the broadest cooperation for the extradition of foraging criminals abroad;

Complete the present Treaty in the following terms:

ARTICLE 1

Mandate from Extraditar

Parties obliously reciprocate to the delivery, according to the conditions set out in this Treaty, and in accordance with the internal standards of each of them, of individuals who respond to criminal proceedings or have been convicted by the judicial authorities of one of the Parties and are in the territory of the another, for trial or execution of a penalty that consists in deprivation of liberty.

ARTICLE 2

Admissibility

1. In order to precede extradition, it is necessary that:

a) the requesting Party has Jurisdiction to judge on the facts on which to substantiate the extradition request, whether committed or not in its territory;

b) the laws of both Parties impose, for the crime by which extradition is being requested, minimum custodial sentences of one-year freedom, regardless of the name of the offence;

c) Part of the penalty yet unfulfilled is equal to or greater than a year, in the case of extradition for execution of sentence.

2. When the extradition request refers to more than one offence, and some of them do not comply with the requirements of this Article, extradition may be granted solely for the crimes that fulfil the said requirements.

3. For tax, financial, tax and foreign exchange control infractions, extradition shall be granted with observance of this Treaty and of the legislation of the requested State. Extradition may not be denied on the grounds of the law of the requested State not to establish the same type of tax, or these are not regulated in the same way in the law of both states.

ARTICLE 3

Inadmissibility

1. It will not be granted extradition:

a) when, by the same fact, the person claimed already has been adjudicated, amnestied or indulged in the required Party;

b) when the person complained has to appear, in the requesting Party, before the Court or Judgment of exception;

c) when the criminal infraction by which extradition is sought for extradition for a strictly military nature;

d) when the infraction constitutes political offence or conex fact;

e) when the requested Party has founded grounds to assume that the extradition request has been filed with the purpose of pursuing or punishing the person claimed on grounds of race, religion, nationality or political opinions; as well as assuming that the situation of the same is aggravated for these reasons.

2. The appreciation of the character of the crime will be exclusively fit for the requested State.

3. For the purposes of this Treaty, strictly military offences shall be deemed to be criminal infractions that terminate acts or strange facts to the common criminal law and which derive, solely, from special legislation applicable to the military and tendant to the maintenance of order or discipline in the armed forces.

4. The simple allegation of a political purpose in the practice of a crime does not qualify it as an offence of such a nature.

5. For the purposes of this Treaty, no infractions of a political nature shall be considered:

a) Attacks on the life of a head of state or foreign government, or against a member of his family;

b) the genocide, the war crimes and those committed against the peace and security of humanity.

c) the acts of terrorism, such as:

I-attack on life, physical integrity or freedom of individuals who are entitled to an international protection, included diplomatic agents;

II-the taking of hostages or the kidnap of people;

III-the attack on people or property committed upon the employment of bombs, grenades, rockets, mines, weapons of fire, explosives or similar devices;

IV-acts of illicit capture of boats or aircraft;

V-the attempted offenses practice provided for in this Article or the participation as a co-author or accomplice of a person who commits or attempts to commit said offences;

VI-in general, any act of violence not understood between the previous ones and that is directed against life, physical integrity or freedom of the people or aim to reach institutions;

d) crimes included in international agreements in force for both Parties.

ARTICLE 4

Non-Extradition of Nationals

1. Any Party has the right to refuse the extradition of its nationals. The Party that for this reason does not deliver its national will promote, at the request of the requesting Party, its judgment by keeping it informed of the progress of the proceeding and, finalized, will refer copy of the sentence.

2. For the purposes of this Article, the condition of national shall be determined by the legislation of the requested Party, appreciated at the time of the decision on extradition.

ARTICLE 5

Prescription

A extradition may be refused if the wanted person can no longer be punished on the grounds of the prescribing of the punitive claim in accordance with the internal legislation of any of the Parties.

ARTICLE 6

Facultative Denegation

Delivery can be denigrated if, in the required Party, the wanted person is being judged by the same fact or facts that substantiate the solicitation, or if the process is extinct in accordance with the internal legislation of the requested Party.

ARTICLE 7

Guaranteed Person of the Extraditus

1. The person delivered on the basis of this Treaty will not be able to, without the prior consent of the requested Party:

a) be delivered to third country; and

b) be processed and adjudicated by any other infraction committed previously.

2. The person extradited will be guaranteed broad defence and, if necessary, the assistance of an interpreter, in accordance with the legislation of the requested Party.

3. When the appellation of the imputed suit comes to modify during the proceedings, the person claimed will only be prosecuted or adjudicated in so far as the constitutive elements of the offence that correspond to the new appellation allow extradition.

4. The extradited will not enjoy the guarantees provided for in paragraph 1 of this Article when, having had the opportunity to abandon the territory of the Party to which it was delivered, it did not do so within the 45 (forty five) days after its release, or the he returned after having left him.

ARTICLE 8

Detraction

The extradited person will be assured that the period in which he has been in the custody of the requested country, on the grounds of the extradition request, will be computed by the requesting Party.

ARTICLE 9

Communication Channels and competent Authorities

1. For the purposes of this Treaty, the competent authorities of the Parties shall communicate by diplomatic means.

2. The competent authorities for the application of this Treaty shall be:

a) for the Republic Federative of Brazil, the Ministry of Justice;

b) for Ukraine, the Ministry of Justice, in cases at trial and execution stage of the sentence, and the Attorney General, for the cases in the investigation phase.

ARTICLE 10

Order and Documents that Fundamentam

1. The extradition request will be submitted in writing, upon presentation of the following documents:

a) when it comes to an unconvicted individual: original or authentic copy of the arrest warrant and, if it is necessary, of an equivalent criminal case act;

b) when it comes to convict: original or authentic copy of the sentencing and certifying sentence of that the same was not fully complied with and of the time it lacked for its fulfillment.

2. The extradition request should contain the precise indication of the imputed fact, the date and place in which it was practiced, as well as data or background necessary to the substantiation of the identity of the person claimed. It should also be accompanied by copies of the texts of the law applied to the species in the requesting Party, of those which substantiate the competence of this, as well as of the legal provisions relating to the limitation of criminal action or conviction.

3. The applicant Party shall, as yet, present evidence or evidence that the person claimed to enter or remain in the territory of the requested Party.

4. If the extradition request is not properly instructed, the requested Party shall request to the requesting Party that, within 60 (sixty) days, counted from the receipt of the communication, provide the additional information. Having elapsed that period, the application will be judged in the light of the available elements.

ARTICLE 11

Language to be Used

The documents instructing the extradition request will be accompanied by translation in the language of the requested Party.

ARTICLE 12

Legalization of Documents

The extradition request, the documents that substantiate it and the translations should be legalized by the organs authorized for the purposes of this Treaty. No further legalization or any other confirmation of validity will be required.

ARTICLE 13

Communication of the Decision

1. The requested Party shall inform the applicant, of its decision with respect to extradition.

2. Any total or partial refusal of extradition should be substantiated.

3. No new extradition request will be allowed on the basis of the same facts that originated the previous one.

ARTICLE 14

Communication from the Sentence of the State Applicant

The requesting Party shall communicate to the requested final decision delivered in the case concerning the extradited.

ARTICLE 15

Preventive Prison

1. The requesting Party may request, in case of urgency, the preventive arrest of the claimant, as well as the seizure of the objects relating to the offence. The application should contain the declaration of the existence of one of the documents listed in Article 10 and be followed by the presentation, within 60 (sixty) days, of the application for duly instructed extradition.

2. Not being filed the application at the appointed deadline, the claimant will be put on liberty and only if he will admit new arrest request for the same fact, if all the formalities required in this Treaty are resumed.

3. The application for remand for extradition may be submitted to the requested Party by diplomatic route or through the International Criminal Police Organization-INTERPOL, or yet by any other means susceptible of registration by written or accepted by the requested Party. The requesting Party shall be informed, immediately, of the follow-up given to its request.

ARTICLE 16

Delivery of Extraditating

1. Granted extradition, the requested Party shall immediately communicate to the requesting Party that the extraditing finds itself at its disposal.

2. If, within 60 (sixty) days counted from the communication, the extraditing him has not been withdrawn by the requesting Party, the requested Party shall give him freedom and may deny his extradition by the same deluged suit.

3. In the event of force majeany impediment to the delivery or receipt of the extraditing, the interested Party shall inform the other Party. The two Parties shall agree on a new date of delivery, the provisions of paragraph 2 of this Article being applicable.

ARTICLE 17

Diwound delivery

1. The delivery of the extraditing will be postponed, in the custody of the requested Party, without prejudice to the effect of the extradition, when:

a) severe infirmity to prevent that, without danger of life, be it transported to the requesting Party;

b) if it finds itself subject to criminal action in the required Party, by another infraction; in this case, if it is being processed, its extradition could be postponed until the end of the proceedings, and, in the event of a conviction, until the time it has served the sentence.

ARTICLE 18

Transit of Extraditating

1. Transit, by the territory of any of the Parties, of a person delivered by third State to one of them and who is not a national of the country of transit, shall be permitted, upon simple request made by diplomatic route, accompanied by the presentation, in original or authentic copy, of the document by which the State of refuge has granted the extradition.

2. The transit could be turned down for serious public order reasons, or when the fact that mandated the extradition is from those who, under this Treaty, would not justify it.

3. It will not be necessary to request the transit of extraditing when employing means of air transport that does not provide for landing on the territory of the Transit State, the case of military aircraft is resussed.

ARTICLE 19

Dos Costs

1. They shall run on account of the requested Party the costs arising from the extradition request, up to the time of delivery of the extraditing to the duly authorized officers of the requesting Party, running on account of the latter following, including the expenses from trasside.

2. The expenses incurred on transit grounds by the territory of the Party to which the transit concession has been requested shall be suffused by the requesting Party.

ARTICLE 20

Of the goods, values and documents

1. Terminated the rights of third parties, and met the provisions of the legislation of the requested Party, all goods, values and documents that relate to the offence and, at the time of arrest, have been found in power of the claimant, shall be delivered, with this, to the requesting Party.

2. The goods, values and documents in power of third parties, and which are also related to the offence, will also be seized, but will only be delivered after resolved the opposing exceptions by the interested parties.

3. Serviced the previous caveats, the delivery of the aforementioned goods, values and documents to the requesting Party shall be effected, even if the extradition, already granted, has not been effected.

4. Should the goods, values or documents become necessary to the ongoing criminal proceedings instruction, the requested Party may retain them for as long as necessary.

ARTICLE 21

Da reconduct of the extraditing

1. The individual who, after delivered by one Party to the other, loathe subtract to the action of justice and return to the required Party, shall be detained upon simple requisition made by diplomatic pathway.

2. Such a person will be delivered again, without further formalities, the Party to which the extradition had been secured, in case the conditions and circumstances on which it was based are not changed.

ARTICLE 22

From the Orders Contest

When the extradition of a same person is sought by more than one State, proceed in the following manner:

a) when it comes to the same fact, preference will be given to the request of the state on whose territory the infraction has been committed;

b) when it comes to different facts, preference will be given to the request of the State in whose territory the most serious infraction has been committed, in accordance with the legislation of the requested Party;

c) when it comes to distinct facts, but that the required Party repute of equal severity, preference will be given preference to the application that is presented in the first place.

ARTICLE 23

From Solution of Controversies

The controversies that arise between the Parties on the provisions contained in this Treaty, will be resolved by direct diplomatic negotiations.

ARTICLE 24

Retroactive application of the Treaty

The present Treaty will also apply to the crimes committed previously to its entry into force.

ARTICLE 25

Purpose provisions

1. This Treaty shall be subject to ratification.

2. The present Treaty shall enter into force thirty days after the exchange of the instruments of ratification.

3. This Treaty shall apply for indefinite time.

4. Each Party may, at any time, denounce the present Treaty. The complaint shall take effect six months after the date on which the other Party has received the respective notification.

5. They will not be affected by the complaint the ongoing applications submitted prior to the respective presentation.

Made in Brasília, on October 21, 2003, in two original copies, in the Portuguese, Ukrainian and English languages, being both texts being equally identical. In the event of a divergence, the Parties shall refer to the text in English.

BY THE REPUBLIC FEDERATIVE

OF BRASIL

MÁRCIO THOMAZ BASTOS

Minister of Justice

BY UKRAINE

LAVEINOVICH

Minister of Justice