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Supreme Court rejects extradition of Argentinian accused of crimes whose statutes of limitation have been reached under Brazilian law

The Plenary of the Supreme Court concluded during its last session on Wednesday (9th) the hearing of Extradition (EXT) 1362 and rejected the request by the government of Argentina against Salvador Siciliano, accused of kidnapping and murdering leftist political activists between 1973 and 1975. The Applicant State argued that the crimes in question, which are against humanity, do not have statutory limitations according to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, of 1968. But the majority of the Justices turned down this argument, alleging that Brazil did not sign that particular convention.

The case was first heard on October 6th of the current year, and already counted with six votes against and three in favor of the request. Justice Cármen Lúcia, who voted in favor of the extradition, and Justice Celso de Mello, who voted with the majority formed for the denial of the request, voted on Wednesday’s session.

In Argentina, Siciliano is investigated for 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).

At the beginning of the trial, the rapporteur of the case, Justice Edson Fachin, voted to grant the extradition, accepting the argument that the crimes against which the Argentine citizen is accused of have no statutory limitations under the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, adopted by the United Nations General Assembly in 1968, given that they are considered crimes against humanity by the government of his country. Justice Luís Roberto Barroso followed this understanding at the time.

Suspended by Justice Teori Zavascki’s request for examination, the case went back to trial two weeks later. According to the Justice, the crimes which the Argentine citizen is accused of are subject to statutes of limitation under Brazilian law and, therefore, the requisite of mutual criminality, an essential element according to the Court’s jurisprudence to allow the extradition, has not been met. Zavascki stressed that it would not be possible to consider the crimes of which Siciliano is accused as not subject to statutory limitations on the basis of the UN Convention on the Imprescritibility of War Crimes, because, although it has been open to signatures since 1968, Brazil has not yet signed it.

Justices Rosa Weber, Luiz Fux, Dias Toffoli, Gilmar Mendes and Marco Aurélio voted with the dissenting opinion. During the same session, Justice Ricardo Lewandowski voted in favor of the extradition.

During her vote, Justice Cármen Lúcia voted with the rapporteur, understanding that statutory limitations do not apply to the case. Justice Celso de Mello, on the other hand, voted for the rejection of the extradition, understanding that the crimes in question have reached their statutes of limitation under Brazilian law, because Brazil did not sign the Convention and is therefore not bound by its terms.

At the end of the trial, Justice Rosa Weber decided to change her earlier vote to follow the rapporteur’s opinion to accept the extradition, understanding that crimes against humanity do not have statutory limitations by the force of cogent norms, such as international conventions.

In short, by majority, the Plenary of the Supreme Court rejected the request for extradition and ordered the immediate release of Salvador Siciliano, as long as he is not in prison for another reason.


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