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The Supreme Court releases Cesare Battisti

Wednesday June 8, 2011

The Brazilian Federal Supreme Court (STF) decided on Wednesday (06/08/2011) on a basis of six concurring opinions as opposed to three dissenting opinions, that the Italian Cesare Battisti should be released. When proclaiming the outcome of that judgement, the President of the Supreme Court Minister Cezar Peluso said that the Italian may be released if not otherwise arrested for any other reason. 

The Supreme Court has positioned itself in the sense that the refusal by ex-President Luiz Inacio Lula da Silva to extradite Battisti to Italy is an "act of national sovereignty that can not be reviewed by the Court." This was the opinion by Ministers Luiz Fux, Carmen Lúcia Antunes Rocha, Ricardo Lewandowski, Joaquim Barbosa, Ayres Britto and Marco Aurelio.

Case history

In 1981, Cesare Battisti was convicted in Italy to 12 years and 10 months in prison for participation in armed groups, concealment of weapons and murder. He escaped from prison, fled to Mexico and spent 11 years as a political exile in France during the government of François Mitterand.

Considered to be an outlaw, Battisti was arrested in Brazil in March 2007, when he filed a request for refuge. Two months later, the Minister of Justice of the ItalianRepublic officially requested extradition before the Supreme Court.

Since that time, Battisti remained emprisoned in Brasilia. In 2009, the then Justice Minister Tarso Genro bestowed the status of political refugee upon Battisti, on the basis of a "well-founded fear of persecution for political opinion" , thus going against an earlier decision by the National Committee for Refugees (CONARE).

The judgement by the Supreme Court

On November 19, 2009, the Supreme Court authorized the extradition of Battisti to Italy, revoking the decision by the former Minister of Justice. In a trial that lasted three days, the long debate brought 5 concurring opinions against 4 dissenting ones, so that the Plenary of the Supreme Court held that the refuge granted by the Brazilian government to Battisti was irregular. Most Ministers considered that Battisti was not pursued for political reasons and therefore was not entitled to refuge. In addition, the crimes he allegedly committed did not have political connotation. Therefore, the statute of limitations has not run.

In the second part of the judgement, by a majority of five opinions (to four), the Ministers decided that the President of Brazil has discretion to decide whether or not to extradite Cesare Battisti. At that time, Ministers Cezar Peluso, Gilmar Mendes, Ricardo Lewandowski and Ellen Gracie dissented. Therefore, the final decision of the Court was in the sense that the last word on the extradition falls within the competence of the President of Brazil.

The decision by former President Luis Inacio Lula da Silva

On December 31, 2010, President Luis Inacio Lula da Silva Lula accepted the opinion of the Attorney General’s Office (AGU) and rejected the activist's extradition to Italy. That decision was based on the extradition treaty between the two countries. The announcement was made through a statement read by Foreign Relations Minister Celso Amorim.

The Italian government appealed to the Supreme Court against the decision of the former President. It was left to the Court to decide on the release of the Italian, who also was on remand.

The final decision by the Supreme Court

On June 8, 2011, the ministers dismissed, (thus without considering the merits of the case), the Italian government's action against the decision by former President Lula. With 6 concurring opinions and 3 dissenting ones, the Plenum held that the decision by former President Lula is a sovereign act of international relations. Therefore, no government of an alien State may challenge it.

Minister Carmen Lucia – According to Minister Carmen Lucia, once the complaint by the Italian government is dismissed by the Court, the integrity of the act by former President remains untouched. "Thus I think the case demands release of the extraditee," she said. She added that the former president, in accepting the grounds of the opinion by the Attorney General’s Office (AGU) to deny the extradition, was therefore not bound by the decision of the Supreme, which authorized the extradition.

Minister Ricardo Lewandowski - Minister Ricardo Lewandowski said that when he analyzed the request for extradition in November 2009, he became convinced that Cesare Battisti was convicted for murder. "But right now this is not the issue at stake," he said. For Lewandowski, the decision by ex-President Lula to deny the extradition falls truly within the idea of “raison d’État”.
"I understand that the president committed a political act, an act of government, which is characterized by broad discretion," he said.

See the full opinion by Minister Ricardo Lewandowski (in Portuguese)

Minister Luiz Fux - For the Minister, "what is at stake here is an act of sovereignty by the President. The Italian Republic has litigated against the Federative Republic of Brazil. "

See the full opinion by Minister Luiz Fux (in Portuguese)

Minister Joaquim Barbosa - Minister Joaquim Barbosa agreed. "If the president did so (denied extradition) and did it justifiably, the extradition process is terminated" he said. He added that as a judge of the Supreme Court, he sees no other alternative but to determine the immediate issuance of the permit for release of Battisti.

Ayres Britto - According to Ayres Britto, it is up to the Supreme Court to authorize or not the extradition request. "The role of the STF is to take part in the extradition procedure to enforce human rights and to ensure that the request is properly instructed", he said. Also according to him it is not possible to say that the President violated the treaty signed between Brazil and Italy. The Minister added that "the treaty is an act of sovereignty" and that the control of an act by an ex-president, in this case must be made by Congress, internally, and by the international community, externally.

Minister Marco Aurelio - joined the majority that was already formed when he said: "My opinion goes in the sense of immediate delivery of the release permit, which is long overdue."

Dissenting opinions

Ministers Gilmar Mendes (Rapporteur), Ellen Gracie and Cezar Peluso decided to revoke the decision by former President Lula and determine extraditee Cesare Battisti be delivered to Italy. "The President of the Republic, in this case violated the law and the decision by the Supreme Court," concluded Minister Cezar Peluso.

Minister Gilmar Mendes – Before the opinion by the President of the Court, Minister Gilmar Mendes, on the grounds of his extensive opinion said that the former President denied Battisti's extradition founded on grounds which had already been rejected by the Supreme in November 2009 when the Italian government's request was granted. He added that the Brazilian State, through the President himself, has an obligation to comply with the extradition treaty and thus any breach therefrom should be considered by the Supreme Court. "It is the rule of law that is sovereign, not the President. He must thus act under the law, by respecting international treaties", he said.

See the full opinion by Minister Gilmar Mendes (in Portuguese)

Minister Ellen Gracie - In the same vein, Minister Ellen Gracie agreed that the act by the ex-president is subject to judicial review as any other administrative act. She stressed the need for the system of "checks and balances" and "forms of review and reconsideration" of the acts of the Powers of the Republic on one another. The minister noted that the treaty is the law between nations and that its observance ensures peace. "Brazil exerts sovereignty when it complies with the treaties, not when it violates them", she said.

Battisti still undergoes prosecution in Brazil for the use of false documents.


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