Key Benefits:
President of the Republic,
On the report of the Prime Minister and the Minister for Foreign Affairs,
Considering articles 52 to 55 of the Constitution;
Considering Act No. 99-986 of 1 December 1999 authorizing the approval of the extradition agreement between the Government of the French Republic and the Government of the Federal Republic of Brazil;
In view of the amended Decree No. 53-192 of 14 March 1953 concerning the ratification and publication of the international commitments undertaken by France, decree:
The extradition agreement between the Government of the French Republic and the Government of the Federal Republic of Brazil, signed in Paris on 28 May 1996, will be published in the Official Journal of the French Republic.
The Prime Minister and the Minister for Foreign Affairs are responsible for the execution of this Order, which will be published in the Official Journal of the French Republic.
CONVENTION D'EXTRADITION
BETWEEN THE GOVERNMENT OF THE FRENCH REPUBLIC AND THE GOVERNMENT OF THE FEDRATIVE REPUBLIC OF BRAZIL
The Government of the French Republic and the Government of the Federal Republic of Brazil, desiring to ensure more effective cooperation between their States with a view to the suppression of crime; wishing to settle in common agreement their extradition relations, agreed on the following provisions:
Article 1
Obligation to extradite
The two States undertake to surrender, in accordance with the provisions of this Convention, each person who, in the territory of one of the two States, is prosecuted for an offence or sought for the purpose of carrying out a sentence by the judicial authorities of the other State.
Article 2
Extradition
1. Extradition will be granted for acts that, under the laws of the two states, constitute offences punishable by deprivation of liberty of at least two years or a more severe penalty.
2. If the extradition is requested for the purpose of enforcement of a sentence imposed by the competent judicial authority of the requesting State, for an offence referred to in the preceding paragraph, the duration of the remaining sentence must be at least nine months.
3. If the extradition request applies to a number of separate acts each punishable by the laws of the two states with a custodial sentence, but some of which do not fulfil the condition of the penalty rate, the requested State may also grant extradition for these facts.
Article 3
Extradition of nationals
1. Extradition will not be granted if the person claimed has the nationality of the requested State. The national quality is appreciated on the date of the facts for which extradition is requested.
2. If, pursuant to the preceding paragraph, the requested State does not surrender the person claimed for the sole reason of his nationality, the requested State shall, in accordance with its own law, submit the case to its competent authorities for the exercise of the criminal proceedings. For this purpose, documents, reports and objects relating to the offence are sent free of charge by the means provided for in Article 9. The requesting State is informed of the decision taken.
Article 4
Mandatory grounds for refusal of extradition
Extradition will not be granted:
(a) If the offence for which it is requested is considered by the requested State as a political offence or as a fact related to such an offence;
(b) If the requested State has serious reasons to believe that the extradition request, motivated by a common law offence, has been submitted for the purpose of prosecuting or punishing a person on grounds of race, religion, nationality or political opinion or that the situation of that person may be aggravated for either of these reasons;
(c) If the person claimed was to be tried in the requesting State by a court not providing the fundamental guarantees of procedure and protection of the rights of the defence or by a court established for his particular case or when the extradition is requested for the execution of a sentence imposed by such a court. The conviction of the person tried by default or in absentia, if it does not involve a confession of guilt, does not, on its own, constitute a ground for refusal of extradition;
(d) If the person claimed has been subjected, in the requested State, to a final judgment for the offence or offences for which extradition is requested;
(e) If, at the time of receipt of the application, the prescription of criminal action or punishment is acquired according to the law of either State;
(f) In case of amnesty, either in the requesting State or in the requested State provided that, in the latter case, the requested State has been competent to prosecute in accordance with its domestic law;
(g) If the offence for which it is requested is considered by the requested State as a military offence that does not constitute a common law offence.
Article 5
Capital punishment
Where the offence because of which extradition is requested is punishable by capital punishment by the law of the requesting State and that the death penalty is not provided by the law of the requested State for such an offence or is generally not enforced therein, extradition may be refused unless the requesting State gives assurances, deemed sufficient by the requested State, that the death penalty will not be executed.
Article 6
Tax offences
In respect of taxes, taxes, customs or currency, the extradition shall be granted under the conditions set out in this Agreement.
Article 7
Optional grounds for refusal of extradition
Extradition may be refused:
(a) If the offence for which it is requested has been committed outside the territory of the requesting State and if the law of the requested State does not authorize the prosecution of similar offences when committed outside its territory;
(b) If the person claimed is the subject of a prosecution by the requested State for the offence because of which the extradition is requested or if the judicial authorities of the requested State have, according to the procedures in conformity with the law of that State, terminated the prosecutions that these authorities have exercised for the same offence;
(c) If the person claimed has been the subject of a final decision of conviction, acquittal or relaxation in a third State for the offence or offences for which extradition is sought.
Article 8
Humanitarian considerations
This Convention does not preclude one of the two States from denying extradition for humanitarian considerations, if the surrender of the person claimed is likely to have an exceptional gravity for it, particularly because of its age or state of health.
Article 9
Transmission path
Requests for provisional arrest, extradition and any subsequent correspondence and supporting documentation of the application will be forwarded through diplomatic channels.
Diplomatic transmission gives them authenticity.
Article 10
Demand and parts to produce
The request for extradition must be in writing and accompanied by:
(a) From the original or authentic shipment either of a condemnation decision, or of an arrest warrant or any other act having the same force, given in the forms prescribed by the law of the requesting State;
(b) A statement of the facts for which the extradition is requested mentioning the date and place of their commission, their qualification, the duration of the sentence to be executed and the references to the legal provisions applicable to them, including those relating to the limitation, as well as a copy of these provisions;
(c) As accurate as possible to report the claimed person and any other information that determines their identity and, if possible, their location.
Article 11
Additional information
If the information provided by the requesting State is found to be insufficient to allow the requested State to take a decision under this Convention, the latter State shall request the necessary additional information and may set a time limit for obtaining such information.
Article 12
Speciality rule
1. The person who has been extradited shall not be prosecuted, tried or detained for the execution of a sentence for an act prior to the surrender other than the person who has motivated the extradition, except in the following cases:
(a) When the State that delivered it consents to it. An application will be submitted for this purpose, together with the documents provided for in Article 10 and a judicial record containing the declarations of the extradition. Such consent may be granted only when the offence for which it is requested is of a nature to be extradited under this Convention;
(b) When, having had the opportunity to leave the territory of the State to which it was delivered, the extradited person did not leave it within two months of its final expansion, or if it returned freely after leaving it.
2. Notwithstanding the provisions of paragraph 1 of this article, the requesting State may take the necessary measures to interrupt the limitation in accordance with its legislation.
3. Where the legal qualification of an offence for which a person has been extradited is amended, that person will only be prosecuted or judged if the newly qualified offence:
(a) May give rise to extradition under this Convention;
(b) See the same facts as the offence for which extradition was granted.
Article 13
Extradition
Except in the case provided for in article 12, paragraph 1, b, surrender to a third State shall not be granted without the consent of the State which has granted extradition. The latter may require the production of the documents provided for in section 10, as well as a record of the hearing by which the person claimed declares whether or not he accepts the extradition.
Article 14
Contest of queries
If the extradition is sought concurrently by one of the Contracting States and by other States either for the same fact or for different facts, the requested State shall rule in the light of all circumstances and, in particular, the existence of other agreements signed by the requested State, the relative gravity and the place of the offences, the respective dates of the requests, the nationality of the requested State and the possibility of another extradition.
Article 15
Provisional arrest
1. In the event of an emergency, the competent authorities of the requesting State may request the provisional arrest of the wanted person. The request for provisional arrest must state the existence of one of the documents provided for in Article 10 (a) and state the intention of sending an extradition request.
2. The application for provisional arrest also refers to the offence for which the extradition will be requested, the date, place and circumstances of the commission, the duration of the penalty incurred or imposed, and the information to establish the identity and nationality of the person sought.
3. The application shall be transmitted, in accordance with the provisions of Article 9, by any means leaving a written record.
4. If the application appears to be regular, it shall be followed by the competent authorities of the State required in accordance with the law of that State. The requesting authority shall be informed without delay of the follow-up to its application.
5. The requested State shall terminate the provisional arrest if, after a period of 60 (sixty) days from the date of the arrest, the request for extradition and the documents referred to in Article 10 were not handed over to it.
6. The release is not opposed to a new arrest or extradition if the extradition request reaches a later date.
Article 16
Decision and surrender
1. The requested State shall notify the requesting State of its decision on extradition through diplomatic channels.
2. Any complete or partial rejection will be motivated.
3. If the extradition is granted, the requesting State shall be informed of the place and date of the surrender, as well as of the duration of the detention for extradition by the person claimed.
4. Subject to the case referred to in paragraph 5 of this section, if the person claimed has not been received on the fixed date, the person may be released on the expiry of a period of fifteen days from that date and is, in any case, released on the expiry of a period of thirty days; the requested State may refuse to extradite it for the same facts.
5. In the event of insurmountable circumstances preventing the surrender or receipt of the person to be extradited, the State concerned shall inform the other State, the two States shall agree on a new date of surrender and the provisions of paragraph 4 of this article shall then be applicable.
Article 17
Adjournment or conditional
1. After deciding on the extradition request, the requested State may adjourn the surrender of the person who is the subject of prosecution or a conviction for an offence other than that of extradition, until it has satisfied the justice of that State.
2. Instead of adjourning the surrender, the requested State may, where special circumstances require it, temporarily hand over the person whose extradition has been granted to the requesting State under the conditions to be determined between these States and, in any case, under the express condition that it will be held in custody and returned.
Article 18
Delivery of objects
1. At the request of the requesting State, the requested State shall seize and remit, to the extent permitted by its legislation, the objects:
(a) Who can serve as evidence;
(b) Who, from the offence, would have been found at the time of the arrest in the possession of the person claimed;
(c) Who will be discovered and subsequently seized after a rogatory commission.
2. The surrender of the objects referred to in paragraph 1 of this section will be carried out even if the extradition already granted could not take place as a result of the death, disappearance or escape of the person claimed.
3. Where such objects are likely to be seized or forfeited in the territory of the requested State, the requested State may, for the purposes of an ongoing criminal procedure, keep them temporarily or return them as a condition of restitution.
4. However, the rights that the requested State or third parties would have acquired on these objects are reserved. If such rights exist, these objects shall be returned as soon as possible and without charge to the requested State at the end of the proceedings in the territory of the requesting State.
Article 19
Transit
1. The transit through the territory of one of the Contracting States shall be granted upon request by diplomatic means, provided that it is an offence of a nature to be extradited under this Convention.
2. The requested State may refuse transit if the person claimed is prosecuted or convicted in the territory of that State, or is a national of that State.
3. Subject to the provisions of paragraph 4 of this Article, the production of the parts provided for in Article 10 is necessary.
4. If the airway is used, the following provisions shall be applied:
(a) When no landing is scheduled, the requesting State shall notify the State whose territory is overflowed and attest to the existence of one of the parts provided for in article 10, paragraph a. In the case of a fortuitous landing, this notification produces the effects of the request for provisional arrest referred to in Article 15 and the requesting State shall apply for a regular transit request;
(b) When a landing is scheduled, the requesting State shall apply regularly for transit.
Rule 20
Language to be used
The documents to be produced are established in the language of the requesting State and accompanied by the translation into the language of the requested State.
Article 21
Procedure
The law of the requested State shall apply only to the procedures for provisional arrest, extradition and transit, unless otherwise provided in this Convention.
Article 22
Fees
1. The costs incurred by extradition in the territory of the requested State shall be borne by that State until the time of surrender.
2. The costs incurred by transit in the territory of the requested State of transit are borne by the requesting State.
Article 23
Final provisions
1. Each State shall notify the other of the procedures required by its Constitution for the entry into force of this Convention.
2. This Convention shall enter into force on the first day of the second month following the date of receipt of the last notification.
3. Each of the two States may denounce this Convention at any time by sending a written notice of denunciation to the other by diplomatic means; denunciation shall take effect six months after the date of receipt of such notice.
In the belief that the representatives of the two Governments, authorized for this purpose, have signed and affixed their seal to this Convention.
Done in Paris on 28 May 1996, in duplicate, in French and Portuguese, both texts being equally authentic.
Done in Paris, August 13, 2004.
Jacques Chirac
By the President of the Republic:
The Prime Minister,
Jean-Pierre Raffarin
Minister of Foreign Affairs,
Michel Barnier
For the Government
of the French Republic:
Hervé de Charette,
Minister of Affairs
Foreign
For the Government
of the Federal Republic of
Brazil:
Luis Felipe Lampreia,
Minister of Relations
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