Commonwealth Numbered Regulations

1996 No. 170 EXTRADITION (FEDERATIVE REPUBLIC OF BRAZIL) REGULATIONS - SCHEDULE

                           SCHEDULE                       Regulation 4

TREATY ON EXTRADITION BETWEEN AUSTRALIA
AND THE FEDERATIVE REPUBLIC OF BRAZIL AUSTRALIA AND THE FEDERATIVE REPUBLIC OF
BRAZIL, herein called the Contracting Parties,

DESIRING to make more effective the co-operation between their respective
countries in the prevention and suppression of crime by concluding a treaty on
extradition,

HAVE AGREED as follows:
Article 1
Obligation to extradite

Each Contracting Party agrees to extradite to the other, in accordance with
the provisions of this Treaty, any person who is wanted for prosecution or the
imposition or enforcement of a sentence in the Requesting Party for an
extraditable offence.

Article 2
Extraditable offences

1. For the purposes of this Treaty, extradition shall be granted for conduct
which constitutes an offence under the laws of both Contracting Parties that
is punishable by deprivation of liberty for a period of at least one year or
by a more severe penalty.

2. Where the request for extradition relates to a person sentenced to
deprivation of liberty by a court of the Requesting Party for any extraditable
offence, extradition shall be granted only if a period of at least nine months
of the sentence remains to be served.

3. For the purposes of this Article, in determining whether conduct is an
offence against the law of the Requested Party:

   (a)  it shall not matter whether the laws of the Contracting Parties place
        the conduct constituting the offence within the same category of
        offence or denominate the offence by the same terminology;

   (b)  the totality of the conduct alleged against the person whose
        extradition is sought shall be taken into account and it shall not
        matter whether, under the laws of the Contracting Parties, the
        constituent elements of the offence differ.

4. An offence of a fiscal character, including an offence against a law
relating to taxation, customs duties, foreign exchange control or any other
revenue matter, is an extraditable offence for the purposes of this Treaty.
Provided that the conduct for which extradition is sought is an offence in the
Requested Party, extradition may not be refused on the ground that the law of
the Requested Party does not impose the same kind of tax or duty or does not
contain a tax, duty, customs or exchange regulation of the same kind as the
law of the Requesting Party.

5. Where the offence has been committed outside the territory of the
Requesting Party, extradition shall be granted where the law of the Requested
Party provides for the punishment of an offence committed outside its
territory in similar circumstances. Where the law of the Requested Party does
not so provide, the Requested Party may, in its discretion, grant extradition.

6. Extradition may be granted pursuant to the provisions of this Treaty in
respect of an offence provided that:

   (a)  it was an offence in the Requesting Party at the time of the conduct
        constituting the offence; and

   (b)  the conduct alleged would, if it had taken place in the territory of
        the Requested Party at the time of the making of the request for
        extradition, have constituted an offence against the law in force in
        the territory of the Requested Party.

7. If the request for extradition relates to a number of offences, each of
which is punishable under the laws of both Parties, but some of which do not
meet the requirements of paragraphs 1 and 2, the Requested Party may grant
extradition for such offences provided that the person is to be extradited for
at least one extraditable offence.

Article 3
Mandatory refusal of extradition

Extradition shall not be granted in any of the following circumstances:

   (a)  when the Requested Party is competent, according to its law, to
        prosecute the person whose surrender is sought for the crime or
        offence for which that person's extradition is requested and the
        Requested Party intends to exercise its jurisdiction;

   (b)  when, on the basis of the same facts, the person sought is being or
        has already been, finally judged in the Requested Party;

   (c)  when the person sought has already been granted amnesty or pardon in
        the Requested Party;

   (d)  when the legal proceedings, or the enforcement of the penalty, for the
        offence committed has become barred by limitation, according to the
        law of the Requested Party;

   (e)  when the person sought may be, or has been, tried or sentenced by an
        extraordinary or ad hoc tribunal;

   (f)  when the offence for which the person's extradition is requested is of
        a purely military character;

   (g)  when the offence for which extradition is requested is considered by
        the Requested Party to be a political offence. For the purposes of
        this paragraph, political offence shall not include:

        (i)    the taking or attempted taking of the life of a Head of State,
               a Head of Government or a member of his or her family; or

        (ii)   an offence for which each Contracting Party has an obligation
               pursuant to a multilateral international agreement to extradite
               the person sought or to submit the case to its competent
               authorities for the purpose of prosecution.

In all other cases, the determination of whether an offence constitutes a
political offence will be the exclusive responsibility of the competent
authorities of the Requested Party.

   (h)  when the Requested Party has substantial grounds for believing that
        the request for extradition has been presented with a view to
        prosecuting or punishing the person sought, by reason of that person's
        race, religion, nationality or political opinion, or that that
        person's position may be prejudiced for any of those reasons; or

   (i)  if the offence for which extradition is sought is an offence which
        carries a punishment of the kind referred to in Article 7 of the
        International Covenant on Civil and Political Rights.

Article 4
Discretionary refusal of extradition

Extradition may be refused under this Treaty in any of the following
circumstances:

   (a)  when the offence with which the person sought is charged or of which
        the person is convicted, or any other offence for which the person may
        be detained or tried in accordance with this Treaty, carries the death
        penalty under the law of the Requesting Party unless that Party
        undertakes that the death penalty will not be imposed or, if imposed,
        will not be carried out;

   (b)  when the person sought has been finally acquitted or convicted in a
        third State for the same offence for which extradition is requested
        and, if convicted, the sentence imposed has been fully enforced or is
        no longer enforceable; and

   (c)  when, in exceptional circumstances, the Requested Party while also
        taking into account the seriousness of the offence and the interests
        of the Requesting Party decides that, because of the personal
        circumstances of the person sought, the extradition would be
        incompatible with humanitarian considerations.
Article 5
Extradition of nationals

1. There is no obligation upon the Requested Party to grant the extradition of
a person who is a national of the Requested Party, but the extradition of its
nationals will be subject to the appropriate laws of that Party.

2. Where a Party refuses extradition pursuant to paragraph 1 of this Article,
it shall submit the case to its competent authorities in order that
proceedings for the prosecution of the person in respect of all or any of the
offences for which extradition has been sought may be taken. That Party shall
inform the Requesting Party of any action taken and the outcome of any
prosecution. Nationality shall be determined at the time of the commission of
the offence for which extradition is requested.

Article 6
Rule of speciality

1. A person who has been extradited under this Treaty shall not be detained,
prosecuted or tried for any offence committed before extradition other than
that for which extradition has been granted, nor extradited to a third State
for any offence, except in any of the following circumstances:

   (a)  when that person has left the territory of the Requesting Party after
        extradition and has voluntarily returned to it;

   (b)  when that person has not left the territory of the Requesting Party
        within forty-five days after being free to do so; or

   (c)  when the Requested Party consents. A request for consent shall be
        submitted, accompanied by the documents mentioned in Article 7 and a
        record of any statement made by the extradited person in respect of
        the offence concerned.

2. The Requesting Party may charge a person who has been extradited with an
offence other than that for which extradition was granted, provided that
offence is:

   (a)  based on proof of the same facts contained in the extradition request
        and its supporting documents; and

   (b)  punishable by the same maximum penalty as, or a lesser maximum penalty
        than, the offence for which the person was extradited.

3. Paragraph 1 of this Article shall not apply to offences committed after
extradition.

4. Paragraph 1(b) of this Article shall not apply if it might be construed
directly or indirectly as banishment, expulsion or forced removal of a
Brazilian national from Brazil.

Article 7
The request and supporting documents

1. A request for extradition shall be made in writing and shall be
communicated through the diplomatic channel.

2. The request shall be accompanied by:

   (a)  a statement of the acts or omissions which are alleged against the
        person in respect of each offence for which extradition is sought;

   (b)  a statement of each offence for which extradition is sought;

   (c)  the details necessary to establish the identity and nationality of the
        person sought including, where possible, photographs and fingerprints;

   (d)  the text of the laws creating the offence and describing the penalty
        which may be imposed or, if the request is made by Australia for a
        common law offence, by a statement of the basis of the creation of the
        offence and the applicable penalty; and

   (e)  if the request is made by Australia, the text of the laws imposing any
        limitation in respect of proceedings or, if the request is made by
        Brazil, the text of the laws relating to the extinguishment of the
        action or the penalty.

3. When the request relates to a person who has not been convicted, it shall
also be accompanied by an original or in its absence an authenticated copy of
a detention order or a warrant of arrest or by the equivalent writ of legal
process, issued by the competent authority of the Requesting Party.

4. When the request relates to a person who has been convicted, it shall also
be accompanied by the following documents:

   (a)  if the request has been made by Australia, a certificate of conviction
        and a copy of the sentence, if it has been imposed; or if a sentence
        has not been imposed a statement of intention to impose a sentence;

   (b)  if the request has been made by Brazil, a copy of the sentence that
        has been imposed.

When a sentence has been imposed, the Requesting Party shall provide a
certificate stating that the sentence is immediately enforceable and that it
has not been fully enforced and the extent to which it has not been carried
out.

Article 8
Translation of the documents

The documents supporting the request for extradition shall comply with Article
9 and shall be accompanied by a translation into the language of the Requested
Party.

Article 9
Authentication of supporting documents

1. A document that, in accordance with Article 8, accompanies a request for
extradition shall be admitted, if authenticated, in any extradition
proceedings in the Requested Party.

2. A document is authenticated for the purposes of this Treaty if:

   (a)  it purports to be signed or certified by a Judge, Magistrate or
        officer in or of the Requesting Party; and

   (b)  it purports to be sealed with an official or public seal of the
        Requesting State or of a Minister of State, or of a Department or
        officer of the Government, of the Requesting State.

Article 10
Supplementary information

1. If the Requested Party considers that the information furnished in support
of a request for extradition is not sufficient in accordance with this Treaty
to enable extradition to be granted, that Party may request that additional
information be furnished within such time as it specifies.

2. If the person whose extradition is sought is under arrest and the
additional information furnished is not sufficient in accordance with this
Treaty or is not received within the time specified, the person may be
released from custody. Such release shall not preclude the Requesting Party
from making a fresh request for the extradition of the person.

3. Where the person is released from custody in accordance with paragraph 2,
the Requested Party shall notify the Requesting Party as soon as practicable.

Article 11
Provisional arrest

1. In case of urgency a Contracting Party may request the provisional arrest
of the person sought pending the presentation of the request for extradition
through the diplomatic channel. The application may be transmitted by post or
telegraph or by any other means affording a record in writing.

2. The application for provisional arrest shall include:

   (a)  information concerning the identity and, if available, nationality, of
        the person sought, the person's physical description and probable
        location;

   (b)  a statement that extradition will be requested;

   (c)  the name, date and place of the offence and a brief description of the
        facts of the case;

   (d)  a statement indicating that an order of arrest exists or a conviction
        was pronounced with the date, place and issuing authority; and

   (e)  a statement indicating the maximum deprivation of liberty that may be
        imposed or that was imposed and, where applicable, that remains to be
        served.

3. On receipt of such an application the Requested Party shall take the
necessary steps to secure the arrest of the person claimed and the Requesting
Party shall be promptly notified of the result of its request.

4. The person arrested shall be set at liberty if the Requesting Party fails
to present the request for extradition, accompanied by the documents specified
in Article 7 within sixty days from the date of arrest, provided that this
shall not prevent the institution of proceedings with a view to extraditing
the person sought if the request is subsequently received.

Article 12
Surrender

1. The Requested Party shall, as soon as a decision on the request for
extradition has been made, communicate that decision to the Requesting Party
through the diplomatic channel. Reasons shall be given for any complete or
partial refusal of a request for extradition. Extradition having been granted,
the Requested Party shall communicate promptly to the Requesting Party that
the person to be extradited is held at its disposition.

2. Where extradition of a person is granted, the person shall be conveyed by
the appropriate authorities of the Requested Party to a port or airport in the
territory of that Party mutually acceptable to both Parties.

3. The Requesting Party may send to the Requested Party, after receiving the
latter's consent, one or more duly authorised agents, either to aid in the
identification of the person sought or to convey the person to the territory
of the Requesting Party. Such agents, during their stay in the territory of
the Requested Party, shall not perform any acts of authority, and shall be
subject to the applicable laws of that Party.

4. The Requesting Party shall remove the person from the territory of the
Requested Party within fifty days of receipt of the decision referred to in
paragraph 1, and, if the person is not removed within that period, the
Requested Party may set that person at liberty and may refuse extradition for
the same offence.

5. If circumstances beyond its control prevent a Contracting Party from
surrendering or removing the person to be extradited, it shall notify the
other Contracting Party. The two Contracting Parties shall mutually decide
upon a new date of surrender, and the provisions of paragraph 4 of this
Article shall apply.

Article 13
Postponed or temporary surrender

1. When the person sought is being proceeded against or is serving a sentence
in the Requested Party for an offence other than that for which extradition is
requested, the Requested Party may surrender the person sought or postpone
surrender until the conclusion of the proceedings or the service of the whole
or any part of the sentence
imposed.   The Requested Party shall inform the Requesting Party of
any postponement.

2. When, in the opinion of the competent medical authority, the person whose
extradition is requested cannot be transported from the Requested Party to the
Requesting Party without serious danger to the person's life due to grave
illness, the surrender of the person under the provisions of the present
Treaty shall be deferred until such time as the danger, in the opinion of the
competent medical authority, has been sufficiently mitigated.

3. To the extent permitted by its law, where a person has been found
extraditable, the Requested Party may temporarily surrender the person sought
for the purposes of prosecution to the Requesting Party in accordance with
conditions to be determined between the Contracting Parties. A person who is
returned to the Requesting Party following a temporary surrender may be
finally surrendered to serve any sentence imposed, in accordance with the
provisions of this Treaty.

Article 14
Consequences of a refusal of extradition

If the extradition of a person is refused, no other request for extradition of
the same person can be presented on the basis of the same facts which
determined the original request.

Article 15
Communication of the final sentence

The Party to which an extradition has been granted shall notify the Requested
Party of the final decision pronounced on the case.

Article 16
Expenses

1. The Requested Party shall make all necessary arrangements for, and meet the
cost of, any proceedings arising out of a request for extradition and shall
otherwise represent the interests of the Requesting Party.

2. The Requested Party shall bear the expenses incurred in its territory in
the arrest of the person whose extradition is sought, and in the maintenance
in custody of the person until surrender to a person nominated by the
Requesting Party.

3. The Requesting Party shall bear the expenses incurred in conveying the
person from the territory of the Requested Party.

Article 17
Surrender of property

1. To the extent permitted under the law of the Requested Party and subject to
the rights of third parties, which shall be duly respected, all property found
in the territory of the Requested Party that has been acquired as a result of
the offence or may be required as evidence shall, if the Requesting Party so
requests, be surrendered if the extradition is granted.

2. Subject to paragraph 1 of this Article, the above mentioned property shall,
if the Requesting Party so requests, be surrendered to the Requesting Party
even if the extradition cannot be carried out owing to the death or escape of
the person sought.

3. Where the law of the Requested Party or the rights of third parties so
require, any articles so surrendered shall be returned to the Requested Party
free of charge if that Party so requests.

Article 18
Transit

1. Transit through the territory of one of the Contracting Parties of a person
surrendered by a third State shall be granted on request made through the
diplomatic channel by the other Contracting Party. The request shall include
information concerning:

   (a)  the nationality of the person being surrendered;

   (b)  the offences for which surrender has been granted;

   (c)  a copy of, or details of, the order of surrender made by the third
        State; and

   (d)  details of the punishment which can be imposed for the offences for
        which surrender has been granted.

2. The request for transit may be denied for any reason for which extradition
may be refused under this Treaty or if granting the request would be contrary
to ordre public.

3. Permission for the transit of a person shall, subject to the law of the
Requested Party, include permission for the person to be held in custody
during transit.

4. Where a person is being held in custody pursuant to paragraph 2 of this
Article, the Contracting Party in whose territory the person is being held may
direct that the person be released if transportation is not continued within a
reasonable time.

5. The Contracting Party to which the person is being extradited shall
reimburse the other Contracting Party for any expenses incurred by that other
Contracting Party in connection with the transit.

6. No authorisation for transit shall be required when air transport is to be
used and no landing is scheduled in the territory of the transit State.

7. If an unscheduled landing occurs in the territory of one Contracting Party,
the other Party shall furnish a request for transit as provided for in
paragraph 1 of this Article. The State of transit shall detain the person
being extradited until the transportation is continued provided that the
request for transit is received within 96 hours of the unscheduled landing.

Article 19
Concurrent requests

1. Where requests are received from two or more States for the extradition of
the same person either for the same offence or for different offences, the
Requested Party shall determine to which of those States the person is to be
extradited and shall notify those States of its decision.

2. In determining to which State a person is to be extradited, the Requested
Party shall have regard to all the relevant circumstances and, in particular,
to:

   (a)  if the requests relate to different offences, the relative seriousness
        of those offences;

   (b)  the time and place of commission of each offence;

   (c)  the respective dates of the requests;

   (d)  the nationality of the person sought; and

   (e)  the ordinary place of residence of the person.

Article 20
Preservation of multilateral obligations

Nothing in this Treaty affects any obligations which have been, or shall in
the future be, assumed by the Contracting Parties under any multilateral
Convention.

Article 21
Entry into force and termination

1. The present Treaty shall enter into force thirty days after the date on
which the Contracting Parties have notified each other in writing that their
respective requirements for the entry into force of this Treaty have been
complied with.

2. This Treaty shall apply to any offence specified in Article 2 whether it
was committed before or after its entry into force.

3. Either Contracting Party may terminate this Treaty at any time by giving
six months' written notice to the other Contracting Party.

IN WITNESS WHEREOF, the undersigned, being duly authorised thereto by their
respective Governments, have signed the present Treaty.

DONE in duplicate, in the English and Portuguese languages, each text being
equally authentic, at Canberra on the twenty-second day of August 1994.

FOR AUSTRALIA:                        FOR THE FEDERATIVE
REPUBLIC OF BRAZIL: GARETH EVANS
Minister for Foreign Affairs          CELSO LUIZ NUNES AMORIM

Minister for External Relations