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Supreme Court will retake the hearing that discusses statutory limitations of crimes against humanity for the purpose of extradition


Justice Teori Zavascki’s request for examination suspended the judgment of Extradition (EXT) 1362, which began to be examined by the Brazilian Federal Supreme Court (STF) during the plenary session held on Thursday the 6th of October. The hearing will resume in tomorrow’s plenary session (October 20th). The request was issued by the government of Argentina against Salvador Siciliano, a citizen of that country accused of kidnapping and murdering left-wing political activists between 1973 and 1975. Justices Edson Fachin (rapporteur) and Luis Roberto Barroso voted in order to grant the application for extradition, under the understanding that the crimes for which Salvador Siciliano is accused have no statutes of limitation because they are considered crimes against humanity by Argentina.

According to the case file, Siciliano is accused of participation or organization of an illegal para-police force called "Triple A" that operated between the years 1973 and 1975, which was dedicated to the kidnapping and murder of leftist militants who operated in Argentina at the time, elimination of communists and government enemies. According to the case information, the terrorist organization was covered up by the then Minister of Social Welfare of the Nation, José López Rega, who set in motion the institutional structure that brought impunity to the organization's actions.

The person sought is investigated for the practice of crimes of illicit association, kidnappings committed with violence and threats and homicides, corresponding in Brazilian law to crimes under Articles 288, sole paragraph, (armed criminal association), 148 (kidnapping and illegal detention) and 121 (homicide), all of the Penal Code (PC).

The Federal Public Defenders’ Office, in technical defense, argues that the alleged crimes are political, which would prevent the extradition. It states that "to define a political crime the exclusively political motivation is essential, so that this animus qualifier of politically motivated criminal behavior reveals itself as an essential element to its characterization".

The Prosecutor-General of the Republic, Rodrigo Janot, supported the extradition. According to him, the quality of crimes against humanity for the acts attributed to the accused was formally recognized by Argentinian courts, which removes their statutory limitations. He noted that the 1988 Federal Constitution considers crimes of armed groups, civilian or military, against the constitutional order and the democratic state void of statutory limitations.

Rapporteur

For Justice Fachin, the fact that Argentina has attributed to the crime the quality of crime against humanity leads to the application of the international regime of non-applicability of statutory limitations provided by the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, adopted by the United Nations General Assembly (UNGA) in 1968.

The Justice pointed out that, although the Convention has not been ratified by Brazil, several countries in the Americas did, reason which led the Inter-American Court of Human Rights to settle, on several occasions, that the non-applicability of statutory limitations to crimes against humanity required the member-States of the Inter-American system of human rights to enable the prosecution of suspected to commit such crimes.

For the rapporteur, an article of the Foreigner’s Statute (Law 6.815/1980), which prohibits the extradition when crimes have reached statutory limitations, cannot be applied to the case. In his view, the clause of punishability extinction does not fall under offenses classified as crimes against humanity, which under international law have no statutory limitations. The Justice points out that if this happens, the internationally asserted obligations of the Argentinian State to punish serious human rights violations committed by one of its citizen will be hindered by Brazilian legal mechanisms. For him, this would lead to an "absurd result", as well as frontally violating the Vienna Convention, which does not allow the invocation of provisions of national law to justify the failure to perform a treaty, which "would make the country a heaven for international criminals".

"Thus, the maintenance of the understanding that the statuatory limitation should be verified only in accordance with the provisions of Brazilian law results in transforming the country into a heaven of immunity for perpetrators of the worst violations of human rights. Such an interpretation not only violates the case law of the Inter-American Court of Human Rights, whose contentious jurisdiction has been declared by the Government of the Federative Republic of Brazil on December 10, 1998, but also empties the meaning of the principle set out in Article 4, II, of the Constitution" said the Justice.

According to Justice Fachin’s vote, the extradition is subject to prison time detraction in Brazil and to the maximum penalty of 30 years imprisonment for each crime. The rapporteur’s vote was fully endorsed by Justice Barroso.

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