State v. Pang

¶1(dissenting) — Four Seattle firefighters died while fighting a fire at Pang’s parents’ warehouse. After fire investigators determined that the fire had been deliberately set, a fugitive warrant was issued for Martin Pang, who fled to Brazil. Pang was charged with first degree arson and four counts of first degree felony murder, and the United States requested that Brazil extradite him on these charges. However, the Brazilian Supreme Court determined that Pang’s alleged act would be classified in Brazil as the single crime of aggravated arson. Therefore, Brazil granted extradition on the arson count alone.

¶2The question before us is whether the State may prosecute Pang for the felony murder given that Brazil extradited him only for arson. The plain language of the United States/Brazil extradition treaty expressly permits prosecution for offenses included in the extradition request. Yet, the majority erroneously concludes that a doctrine of international law called specialty prohibits the State from prosecuting Pang for anything other than the arson count for which he was extradited. The majority’s conclusion is based on a misunderstanding of the specialty doctrine and is inconsistent with the vast weight of authority, which holds that the scope of any specialty limitations on prosecution is determined solely by the language of the applicable treaty.

¶3*917Unless Pang is prosecuted for murder, he cannot be punished for the firefighters’ deaths because the codification of the "real facts doctrine” in our state sentencing laws excludes from sentencing consideration facts that establish the elements of a more serious crime. Thus, the majority’s decision not only violates the State’s unambiguous rights under the treaty, but also fails even to effectuate Brazil’s expectation that Pang will be held accountable for the deaths he may have caused

¶4ANALYSIS

¶5THE SPECIALTY DOCTRINE

¶6Absent a treaty, the obligation to surrender a fugitive has never been recognized as a principle of international law.109 In order to ensure that criminal fugitives are brought to justice, many nations, including the United States, have entered into extradition treaties to facilitate the surrender and prosecution of fugitives. In order to guard against indiscriminate prosecution, particularly of political crimes, extradition treaties usually include provisions that limit prosecution for separate crimes unrelated to the extradition request.110 Such limitations on prosecution are collectively referred to as the "specialty doctrine” and serve to discourage nations from requesting extradition for one offense as a ruse for obtaining jurisdiction on a different offense. However, the precise form of the specialty doctrine varies because nations have negotiated different limits on postextradition prosecution.

¶7For example, some extradition treaties prohibit prosecution for any offenses other than those for which extradition is specifically granted. In this most restrictive version of the specialty doctrine, the asylum country dictates the scope of permissible prosecution by its grant of extradition. It was this version of the rule that was applied in the *918Supreme Court’s first specialty doctrine case, Rauscher, and the rule that the majority erroneously suggests is implied in every extradition treaty to which the United States is a party.

¶8Although some nations adhere strictly to this version of specialty in all extradition matters, "[i]n other states, including the United States, the prosecution may go forward if it is based on the same facts as those set forth in the request for extradition.”111 Nations adopting this variation of the specialty doctrine retain control over the scope of prosecution rather than allowing the asylum country to dictate its scope. It is this version of the specialty doctrine that is expressly incorporated into the United States/Brazil extradition treaty: "A person extradited by virtue of the present Treaty may not be tried or punished by the requesting State for any crime or offense committed prior to the request for his extradition, other than that which gave rise to the request. ”112 But both versions of the rule accomplish the purpose of the specialty doctrine: protection against indiscriminate prosecution of separate crimes unrelated to the extradition request.

¶9In suggesting that the specialty doctrine must be implied into the United States/Brazil extradition treaty, the majority assumes, without support, that the specialty doctrine is solely defined as limiting prosecution to offen*919ses for which extradition was granted. But, as the First Circuit Court of Appeals pointed out:

Specialty ... is not a hidebound dogma, but must be applied in a practical, commonsense fashion. Thus, obeisance to the principle of specialty does not require that. . . the prosecution always be limited to specific offenses enumerated in the surrendering state’s extradition order . . . .[113]

¶10In the present case, the specialty doctrine does not need to be implied for it is already expressly incorporated into the United States/Brazil extradition treaty, albeit in a form that is not conducive to the majority’s desired result. Thus, the question is not whether the specialty doctrine should be implied in the United States/Brazil extradition treaty, but whether this court can imply additional limitations on prosecution beyond the express specialty provisions agreed upon by the United States and Brazil.

¶11A COURT MAY NOT IMPLY ADDITIONAL LIMITATIONS ON PROSECUTION IN THE FACE OF EXPRESS LIMITATIONS INCLUDED IN THE TREATY

¶12The majority relies on United States v. Rauscher, 119 U.S. 407, 7 S. Ct. 234, 30 L. Ed. 425 (1886) for the proposition that an implied term of every extradition treaty is that an extradited fugitive may be prosecuted only for crimes for which he was surrendered. Yet, the majority, by its own analysis, demonstrates that Rauscheris not applicable in the present case.

¶13In Rauscher, an American merchant ship officer who was accused of murdering a crewmember fled to Great Britain. The United States, pursuant to its first extradition treaty, requested the fugitive’s extradition for murder; the request was subsequently granted. The defendant, however, was subsequently tried and convicted of inflicting cruel and unusual punishment instead of murder. The Supreme Court vacated the sentence and held that the *920defendant could be tried only for an offense "with which he is charged in the extradition proceedings and for which he was delivered up . . . .”114 Moreover, the Court rejected the State’s argument that the treaty’s silence on the issue indicated that the United States and Great Britain intended that there be no limitations on prosecution. Instead, the Court implied such a limitation into the treaty.

¶14At first blush, it might appear as though the Court had announced a rule that such a limitation is implied in all extradition treaties as a matter of course. Yet, the Court strictly limited its holding as an interpretation of the extradition treaty with Great Britain:

"The right of one government to demand and receive from another the custody of an offender who has sought asylum upon its soil, depends upon the existence of treaty stipulations between them, and in all cases is derived from, and is measured and restricted by, the provisions, express or implied, of the treaty. ”[115]

¶15Consistent with the rule that the treaty defines the scope of the specialty doctrine, the Court initially looked to the text of the treaty itself.116 It was only after determining that the treaty was silent on this issue that the Court looked beyond the express treaty terms to determine whether the parties intended to limit the scope of post-extradition prosecution. Thus, it was only in the absence of express specialty provisions that the Court turned to the comity principles in general, the specific history between the United States and Great Britain on this issue in particular, and the statutory references to limitations on prosecution, in order to resolve this question.

¶16The majority correctly identifies a treaty’s silence on the issue as an essential prerequisite for the Court to *921inquire beyond the language of the treaty itself. "The Court examined the treaty and the history of relations between the United States and Great Britain to determine whether the parties, in the absence of express incorporation, nevertheless intended the doctrine of specialty to be part of the treaty.”117 Crucial to the Court’s decision was the fact that the very issue had been the subject of much dispute between the nations, with Great Britain making very clear that it expected that the scope of prosecution would be limited by the grant of extradition.118 The Court also looked to a statute, now codified at 18 U.S.C. § 3192, that authorizes the President to provide for an extradited fugitive’s transportation and safekeeping "until the final conclusion of his trial for the crimes or offences specified in the warrant of extradition, . . . .”119 Yet, the court resorted to this language only to resolve "any doubt upon this construction of the treaty.”120

¶17Thus, Rauscherstands for the proposition that a court’s overriding task is to determine what the signatory nations to the extradition treaty intended to include in the way of limitations on prosecution. Only when the text of the treaty fails to provide expressly for such limitations is the court then authorized to look beyond the treaty. Lastly, when there is evidence that the signatory nations expected that prosecution would be limited to charges for which surrender is granted, the court may then imply this term into the treaty.

¶18Curiously, the majority concedes that Rauscherautho*922rizes courts to imply prosecution limitations only when the treaty fails to provide expressly for such limitations:

Under Rauscherthe specialty doctrine may be implied where a treaty is silent on the issue and there is no reason to assume the signatory nations did not abide by the principles of comity.[121]

¶19Indeed, the majority must concede this point. Were it the case that Rauscherprohibits the prosecution of any extradited fugitive for offenses other than those for which extradition was granted, the majority would need to explain, and indeed has failed to offer any explanation for, the numerous circuit court decisions upholding such convictions against alleged specialty doctrine violations.122

¶20Unlike the treaty at issue in Rauscher, most United States extradition treaties, including the one with Brazil, now expressly define the limits of postextradition prosecution. Again, the majority concedes that "[i]n determining whether there has been a violation to the specialty doctrine, courts have consistently examined the terms of the treaty for any limitations on prosecution.”123 Indeed, the majority cites a formidable list of federal extradition cases in which the courts, rather than implying limitations into the applicable treaties, had confined themselves to the specialty doctrine as expressly provided for in the treaties at issue.124

¶21The majority, having identified an overwhelming

¶22*923number of cases in which the courts confined their specialty doctrine analysis to the express limitations in the relevant treaties, fails to offer a single case in which a court implied prosecution limitations beyond the express limitations included in the relevant treaty. This failure is understandable since it is well settled that the only limitations on post-extradition prosecution are those contained in the applicable extradition treaty. "To determine the nature and extent of the right we must look to the treaty which created it.”125

¶23Although the majority is correct that international law is incorporated into domestic law,126 "extradition is 'not

¶24*924uniformly recognized as part of customary international law.’ ”127 "[B]ecause United States extradition practice is based solely on the existence of a treaty,” the Supreme Court has rejected the suggestion that extradition cases are governed by customary international law and has "limited the practice to a strict interpretation of the applicable treaty.”128

¶25This view comports with Brazil’s understanding with respect to any limitations on prosecution:

[LJegally binding international acts are the only legal instruments capable of binding two or more sovereign States together. Thus, provided that the terms of the Treaty of Extradition . . . are respected, it will be incumbent upon the justice system of the United States of America to establish a suitable punishment for the crime of arson in the first degree, resulting in four deaths and the consequences thereof, under U.S. law.[129]

¶26Thus, the question of whether the State may prosecute Pang for felony murder depends on the express specialty provisions of the United States/Brazil extradition treaty.

¶27THE UNITED STATES/BRAZIL EXTRADITION TREATY PROHIBITS PROSECUTION ONLY FOR CHARGES THAT ARE NOT INCLUDED IN THE EXTRADITION REQUEST

¶28The United States/Brazil extradition treaty provides that: "A person extradited by virtue of the present Treaty may not be tried or punished by the requesting State for any crime or offense committed prior to the request for his extradition, other than that which gave rise to the

¶29*925request.... ”130 "[T]reaties are to be interpreted in accordance with the plain meaning of the words.”131 The State requested Pang’s extradition on arson and first degree felony murder charges arising out of his act of intentionally setting a fire that resulted in death. It is undisputed that this act is an extraditable offense. Since Pang is not being prosecuted for any offenses other than those that gave rise to the request for extradition, the State’s prosecution of Pang for murder does not violate the United States/Brazil extradition treaty and fully complies with the express limitations negotiated by the United States and Brazil.

¶30Giving effect to the plain language of the treaty and refusing to imply additional limitations finds ample case support. The majority itself concedes that two circuit court decisions have affirmed convictions on charges other than those for which extradition was granted based on the express language of the treaties at issue.132 The majority never explains how these cases could have been decided consistent with a rule that purportedly prohibits such prosecutions in every extradition case.

¶31For example, in Fiocconi the defendants were extradited from Italy to the United States on charges of conspiring to import narcotics. They were later additionally charged and convicted of substantive narcotics crimes. They appealed their convictions, arguing that under Rauscherthere was an implicit prohibition against prosecution for charges other than the conspiracy charge for which they were extradited. In upholding their convictions the circuit court looked to the United States/Italy extradition treaty, which provided, much like the United States/Brazil extra-

¶32*926dition treaty, that: "the person . . . delivered up for the crimes enumerated . . . shall in no case be tried for any . . . crime, committed previously to that for which his . . . surrender is asked.”133The court observed:

If the countries had intended that the requesting government could not try the accused for any crime committed .before the time of his surrender other than the crime for which he was extradited, they could have accomplished this by adopting one of the standard clauses to that endJ[134]

¶33In doing so, the court expressly rejected the suggestion that under Rauschergreater limitations on prosecution may be implied in the face of express treaty limitations.

¶34Another example is United States v. Sensi, 879 F.2d 888 (D.C. Cir. 1989), in which the defendant was convicted of charges other than those for which he was extradited. The court upheld the convictions on the basis that the treaty prohibited prosecution only for offenses other than those "established by the facts in respect of which his extradition has been granted.”135 The court acknowledged that the crimes charged were not those for which extradition was granted. The crimes were based, however, on the same underlying facts and, therefore, complied with the specialty provisions in the treaty. Thus, there was no violation of the specialty doctrine.136 Similarly, had the United States and Brazil intended to limit prosecution of fugitives to crimes for which the asylum country agrees to extradite, they could have used language to that end. Such limitation is included in many of our extradition treaties.137

¶35*927Indeed, the majority cites only a single post-Rauscher case in which a court held that a fugitive cannot be prosecuted for offenses other than those for which extradition was granted. Yet, that case was based on the express language of the treaty, which included just such a limitation. In United States v. Khan, 993 F.2d 1368 (9th Cir. 1993), the United States requested that Pakistan extradite a fugitive charged with conspiracy to import heroin and with using a communication facility to facilitate the conspiracy. Pakistan directed that the defendant could be "surrendered . . . for trial under the relevant American Law,”138 yet the Pakistani extradition materials referred only to the conspiracy charge.139 The court held that because Pakistan did not unambiguously agree to extradite the defendant on the communications facility charge, the specialty doctrine had been violated and the conviction on that charge should be reversed.140 Yet, the court did so because "[t]he operative treaty in this case contains the following language: 'A person surrendered can in no case be [prosecuted] . . . for any other crime or offence, or on account of any other matters, than those for which the extradition shall have taken place.’ ”141 The court acknowledged that the Sensicourt had held that the specialty doctrine is satisfied as long as the defendant is charged with crimes arising out of the same facts for which his extradition was granted. However, the court clarified that that holding was based on the more expansive version of the *928specialty doctrine expressly incorporated into the treaty at issue in that case.142

¶36Thus, an extraditee may challenge his prosecution for crimes other than those for which extradition was granted when the express specialty provisions limit prosecution to those offenses. When the extradition treaty expressly provides for lesser protection, however, the extraditee may assert only the limits of any rights as expressed in the treaty. Since the United States requested that Pang be extradited on four felony murder counts as well as arson, and the extradition treaty with Brazil limits the offenses that may be prosecuted only to those "which gave rise to the request,” there is simply no violation of the treaty terms.

¶37A GOOD FAITH READING OF THE UNITED STATES/BRAZIL EXTRADITION TREATY IS CONSISTENT WITH THE PLAIN MEANING OF THE EXPRESS SPECIALTY TERMS

¶38I agree with the majority that we must interpret treaties in good faith.143 However, the Johnson Court’s admonition that we construe extradition treaties in good faith is fully met by giving effect to the plain language of the United States/Brazil extradition treaty.

¶39In Johnson, the defendant was indicted on federal charges of fraud and conspiracy to commit fraud; yet, the United States proceeded upon only the conspiracy charge. After the defendant was convicted, he fled to Canada and the United States requested his extradition. Canada refused to extradite, having determined that conspiracy to commit fraud was not an extraditable offense. The United States recharged the substantive fraud count, requested extradition for that offense, and Canada extradited the fugitive. The United States then imprisoned the defendant *929for the conspiracy conviction. In affirming a lower court order discharging the defendant, the Supreme Court emphasized that an extradition treaty:

should be construed in accordance with the highest good faith, and that it should not be sought by doubtful construction of some of its provisions to obtain the extradition of a person for one offense and then punish him for another and different offense.[144]

¶40The Court was rightly concerned with the government’s blatant manipulation of the extradition process to obtain extradition for one offense as a ruse for obtaining jurisdiction for another that "is entirely different from the one for which he was extradited.”145 As discussed earlier, this is the unifying purpose underlying the various versions of the specialty doctrine.

¶41In the present case, however, the United States requested and Brazil granted extradition for the same criminal act: the intentional burning of a building that resulted in death. The majority mistakenly assumes that the relevant inquiry is whether the two nations criminalize the act in the same way. Yet, the Supreme Court has made clear that:

The law does not require that the name by which the crime is described in the two countries shall be the same; nor that the scope of the liability shall be coextensive, or, in other respects, the same in the two countries. It is enough if the particular act charged is criminal in both jurisdictions.[146]

¶42Extradition treatises universally recognize this distinction.147

¶43Thus, allowing the State to prosecute Pang for murder *930does not find us engaging in "doubtful construction” in order to allow prosecution for "another and separate” offense from that for which Pang was extradited. Pang is accused of intentionally setting a fire that resulted in death. Under both Washington and Brazilian law this act is criminal and is more severely punished than simple arson because of the resulting death. Although the act is differently codified in the two countries, as Collins makes clear, the dispositive inquiry is whether the act is criminal in both jurisdictions. Therefore, giving effect to the plain meaning of the United States/Brazil extradition treaty does not violate our obligation to construe treaties in good faith.

¶44THE "REAL FACTS” DOCTRINE PROHIBITS THE TRIAL COURT FROM CONSIDERING THE DEATHS AS AGGRAVATING FACTORS IN SENTENCING

¶45The majority attempts to mitigate the injustice of its decision with the suggestion that, whether or not Pang is convicted for the felony murders, the trial court could depart from the standard range arson sentence and impose the statutory maximum of life imprisonment.148 The majority’s unstated assumption is that the firefighters’ deaths could be used as aggravating factors justifying the imposition of an exceptional sentence. Indeed, as the majority points out, the Brazilian Supreme Court assumed that Pang could be as severely punished whether the firefighters’ deaths served as the basis for an exceptional arson sentence or separate felony murder sentences.149

¶46However, despite the trial court’s discretion to depart from the standard range based on the presence of aggravating circumstances, this discretion is sharply limited *931by the "real facts doctrine.” As Justice Smith pointed out in State v. Johnson, 124 Wn.2d 57, 71 n.33, 873 P.2d 514 (1994): "The 'real facts’ concept of RCW 9.94A.370(2) excludes consideration of either uncharged crimes or crimes charged but later dismissed.”150 RCW 9.94A.370(2) provides, in part:

Facts that establish the elements of a more serious crime or additional crimes may not be used to go outside the presumptive sentence range except upon stipulation or when specifically provided for in RCW 9.94A.390(2)(c), (d), (f), and (g)[151]

¶47In the present case, the arson deaths cannot be used to depart from the standard range because they establish an essential element of first degree felony murder.152 And there can be no dispute that felony murder is both a separate and more serious crime since it is precisely because Washington penalizes Pang’s alleged act as two separate crimes that we are deciding this case at all. With the murder charges dismissed and the trial court’s inability to otherwise consider the deaths, the trial court will have no choice but to enter a standard range sentence for first degree arson, which, as the majority points out, would be approximately two years in Pang’s case.153

¶48*932CONCLUSION

¶49The majority’s decision to dismiss the murder charges defeats the very purpose of extradition:

The law of extradition is . . . founded upon the broad principle that it is to the interest of civilized communities that crimes, acknowledged to be such, should not go unpunished, and it is part of the comity of nations that one state should afford to another every assistance towards bringing persons guilty of such crimes to justice.[154]

¶50Yet, under the majority’s holding, the deaths of four innocent victims will go unpunished, even though the laws of both Brazil and Washington recognize arson resulting in death as a more serious crime than arson alone. Thus, rather than furthering the ends of justice, the majority rewards Pang’s calculated flight and ensures that neither nation’s will is done by immunizing Pang from any liability for the deaths he may have caused. Because Pang’s prosecution for murder would be wholly consistent with both our treaty obligations toward Brazil and the overwhelming weight of authority, Pang should stand trial for murder and arson.

¶51Dolliver and Talmadge, JJ., concur with Durham, C.J.

¶101(concurring in dissent) — I am in complete agreement with the chief justice’s conclusion in dissent that Martin Pang should stand trial for four counts of first degree murder and one count of arson. I write this concurrence simply to express my view that the dissent and majority opinions should not speculate on whether or not the real facts doctrine would preclude the trial judge from imposing a sentence on Pang for first degree arson that would exceed a standard range sentence for that of*933fense. In my view, it is entirely inappropriate for this court to pass judgment on the propriety of a sentence that has not yet and may never be imposed. Sentencing bridges need to be crossed only if and when an individual is convicted of an offense. Any speculation about the validity of a sentence that has not or may never be imposed is dicta of the first order and should not be a part of either the majority or dissenting opinion.

¶102Opinion Appendix ’A”

¶103FEDERAL SUPREME COURT

¶10411/30/95 FULL SESSION

¶105EXTRADITION No. 00006541 / 120

¶106ORIGIN: UNITED STATES OF AMERICA

¶107ASSIGNED: JUSTICE NÉRI DA SILVEIRA

¶108REQUESTED BY: THE GOVERNMENT OF THE UNITED STATES OF AMERICA

¶109PERSON SOUGHT: MARTIN SHAW PANG

¶110REPORT

¶111JUSTICE NÉRI DA SILVEIRA (ASSIGNED): -The Embassy of the United States of America contacted the Brazilian Government through the Ministry of Foreign Affairs, and citing Diplomatic Note No. 083, of March 7,1995, as well as The Brazil-United States Extradition Treaty of January 13, 1961 Article VIII and Additional Protocol of June 18, 1962, requested the provisional arrest, for extradition purposes, of MARTIN SHAW PANG, a.k.a. MARK WONG, a.k.a. SUEN HING WAH, an American citizen, born November 12,1955, following arrest warrant issued on March 3, 1955, [ 1 ] by Judge Bill Stream, [ 2 ] of King

¶112[ 1 ] Translator’s Note: This is an obvious typing error in the original. It should read: 1995.

¶113[ 2 ] "Judge” Bill Stream should instead be identified as "Deputy Clerk Bill Stream.”

*934County Court, Seattle, State of Washington, to be tried for [crimes] in the first degree by the Superior Court of said County, according to the facts described in the above mentioned Note No. 83, fls. 5 - 6 PPE 217, attached:

The facts of this case indicate that on January 5th, 1995, a little after 19:03, the Seattle Fire Department responded to a fire at the Mary Pang Food Warehouse, Inc. While fighting the fire several firemen got to the first floor in the flooded warehouse. Without any warning whatsoever, the floor gave in, tumbling the firemen to the basement. Four firemen died in the fire.

On December 13, 1994 an agent of the Bureau of Alcohol Tobacco and Firearms (ATF) was contacted by a witness who said that the "Mary Pang” warehouse was going to be "burned”. The witness told the agent that Pang was advised to remove his personal belongings from the warehouse.

On another occasion, Pang told the witness, in detail, how the fire would occur and it really happened that way. On another occasion, Pang also removed his personal belongings from the building.

In December, Pang took a close friend to the warehouse and told him that the food company was not doing well. He said that the warehouse would burn down in January and that it would look like transients set the fire. Pang told a number of other people that the warehouse would burn down.

After the fire Pang told another witness that it looked like some transient had set the warehouse on fire and described how it had happened. Pang described how the fire happened even before the information had been announced by the investigators. Inevitably, Pang’s statements to his friends came very close to a confession. Arson Investigators announced that the fire had been intentionally set, causing the death of four fire-fighters.

Murder is described in Article II Paragraph I of the Treaty of Extradition Between the United States of America and the United States of Brazil. Seizure of Assets is described in Article XX of the [same] treaty.

¶114Because the request for the provisional arrest for purposes of extradition of MARTIN SHAW PANG, a.k.a. MARK WONG, a.k.a. SUEN HING WAH, had been sufficiently documented, I ordered the provisional arrest of the above mentioned alien, according to Article 81 - Estatuto do Estrangeiro [Foreign National Statutes] and according to what had been decided on the Question of the Order for Extradition Request No. 478-6, which determined that an arrest warrant be issued, to be executed by the Federal Police Department, according to fls. 12 of writ, PPE documents No. 217-3 / 420, attached.

¶115On May 15, 1995, the Minister of Justice, through Dispatch / GM / MJ / No. 00435, expedited probable cause and other formal documents for the extradition of Martin Shaw Pang, which had been sent by the American Embassy, through diplomatic channels, according to Diplomatic Note No. 169 fls. 6/7, where it reads (fls. 6):

Pang is sought by the State of Washington to be tried for Intentional Homicide and Arson. He is the object of Criminal Information 95-1-00473-0, presented on March 17, 1995, at the King County Superior Court, Seattle, *935"Washington, accusing him of: (1) Murder in the First Degree, in violation of RCW [Revised Code of the State of "Washington] Section 9A.32.030; and (2) Negligent Fire-Setting [i.e. Arson] in the First Degree, in violation of RCW Section 9A.48.020. An arrest warrant was issued by Judge Bill Stream [2] of King [County] Court, on March 3, 1995.

¶116After capture [and] in the custody of the Federal Police Department, in the State of Rio de Janeiro, I entrusted the Federal Justice [System] of that State with the interrogation of the person sought (fls. 261).

¶117The person sought for extradition was interrogated in the presence of his counsel, Dr. Paulo Freitas Ribeiro. The content of his statements are to be found on pgs. 274 / 277, which I cite (fls. 275- 276):

. . . has knowledge of the penalties that may be imposed for the crimes [he] is being accused of; that a few months before the fire the insurance premium had been reduced, and besides, he was not going to be one of the beneficiaries of the insurance; that, [he] adds, [he] is not in need of money, due to the sale of real-estate property he has sufiicient funds in hand; that it is true that he has signed a confession of the crimes, but that he had done so under duress; that this confession was given at the Rio de Janeiro Federal Police facilities, in the presence of American police officers only; that those agents said they were FBI; that this happened at night; that the American agents requested a room from the [Brazilian] federal police solely to interrogate him, which the local police declined; that he did not suffer any type of bad treatment, but that, as he was under intense pressure, worried about the welfare of his family, he opted to sign, because the agents promised they would reduce the pressure being applied on his family in the USA; that, at the time he signed his confession there were no Brazilian federal agents nearby; that, according to the FBI agents, this was the best solution.

¶118In his defense, fls. 280 / 300, the lawyers for the person sought for extradition, affirm: "The Defendant does not want to avoid extradition, because he wishes to return to his Country to establish his innocence”, affirming that the Defense "will not attack the extradition request, but that the extradition be done in a partial manner, and also that conditions be imposed on the penalty to be eventually carried out, to the extent that Brazilian Law does not permit life imprisonment.” It is alleged, to sum it up, that the Defense will be structured in the following manner:

a) According to Article 85 Par. 2 of Law No. 6.815 / 90, instead of a trial, that a judicial order be entered, so that the requesting State send to this Court the text of the alleged violated law.

b) That the extradition be denied as to Intentional Homicide, because of lack of elements in this respect.

c) Denial of Extradition for the Crime of Arson with Risk of Loss of Life, [but] deferment of extradition for the crime of Arson in the Second Degree.

d) That the hand-over [of the Defendant] be conditioned to the promise of *936limiting the penalty eventually given to the Defendant to the maximum allowed by Brazilian law and that the other conditions contained in the Foreign National Statutes be adhered to.

¶119In a writ, fls. 321,1 determined that the requesting State provide, within twenty days, a set of authenticated copies of law texts invoked in the case, including the order, which has been done by Diplomatic Notes Nos. 359 and 415, and documents accompanying them (fls. 329 / 359 to 379 / 399).

¶120The Office of the Attorney-General of the Republic, in its opinion on fls. 362 / 373, deemed to grant the extradition, with no exceptions. This is my report, [signed] J. Néri

¶121ALM

¶122FEDERAL SUPREME COURT

¶123EXTRADITION No. 00006541 / 120

¶124VOTE

¶125JUSTICE NÉRI DA SILVEIRA (ASSIGNED): The charge of 3 / 3 / 1995 before the King County Court against the person sought, with the State of Washington as the Plaintiff and Martin Shaw Pang as the Defendant is to be found in fls. 150-159, with the following counts of Murder in the First Degree (fls. 150 / 152):

I, Norm Maleng, Prosecuting Attorney for King County, in the name and by the authority of the State of Washington, do accuse MARTIN S. PANG of the crime of Murder in the First Degree, committed as follows:

That the Defendant MARTIN S. PANG, together with another, in King County, Washington, on or about January 5, 1995, while committing and attempting to commit the crime of Arson in the First Degree, and in the course of and in the furtherance of said crime and in immediate flight therefrom, did cause the death of Lieutenant Walter Kilgore, a human being who was not a participant in the crime, and who died on or about January 5, 1995;

Contrary to RCW 9A.32.030 (1) (c), and against the peace and dignity of the State of Washington.

And I, Norm Maleng, Prosecuting Attorney aforesaid further do accuse MARTIN S. PANG of the crime of Murder in the First Degree, a crime of the same or similar character as another crime charged herein, and committed as follows:

That the defendant MARTIN S. PANG, together with another, in King County, Washington, on or about January 5, 1995, while committing and attempting to commit the crime of Arson in the First Degree, and in the course *937of and in the furtherance of said crime and in immediate flight therefrom, did cause the death of Lieutenant Gregory A. Shoemaker, a human being who was not a participant in the crime, and who died on or about January 5, 1995;

Contrary to ROW 9A.32.030 (1) (c), and against the peace and dignity of the State of Washington.

And I, Norm Maleng, Prosecuting Attorney aforesaid further do accuse MARTIN S. PANG of the crime of Murder in the First Degree, a crime of the same or similar character as another crime charged herein, and committed as follows

That the Defendant MARTIN S. PANG, together with another, in King County, Washington, on or about January 5, 1995, while committing and attempting to commit the crime of Arson in the First Degree, and in the course of and in the furtherance of said crime and in immediate flight therefrom, did cause the death of Fire-fighter James T. Brown, a human being who was not a participant in the crime, and who died on or about January 5, 1995;

Contrary to ROW 9A.32.030 (1) (c), and against the peace and dignity of the State of Washington.

And I, Norm Maleng, Prosecuting Attorney aforesaid further do accuse MARTIN S. PANG of the crime of Murder in the First Degree, a crime of the same or similar character as another crime charged herein, and committed as follows:

That the defendant MARTIN S. PANG, together with another, in King County, Washington, on or about January 5, 1995, while committing and attempting to commit the crime of Arson in the First Degree, and in the course of and in the furtherance of said crime and in immediate flight therefrom, did cause the death of Fire-fighter Randall R. Terlicker, a human being who was not a participant in the crime, and who died on or about January 5, 1995;

Contrary to RCW 9A.32.030 (1) (c), and against the peace and dignity of the State of Washington.

¶126Afterwards, on 3 / 17 / 1995, the Information was amended, accusing the Defendant, now the person sought, of Arson in the First Degree [Count V], a crime of similar character, a class "A” felony (intentional crime), "for which”, according to fls. 134, "there is the possibility of life in prison”. FIs. 178 / 179 describe Count Y as follows:

And I, Norm Maleng, Prosecuting Attorney aforesaid further do accuse MARTIN S. PANG of the crime of Arson in the First Degree, a crime of the same or similar character and based on a series of acts connected together with another crime charged herein, which crimes were part of a common scheme or plan, and which crimes were so closely connected in respect to time, place and occasion that it would be difficult to separate proof of one charge from proof of the other, committed as follows:

That the Defendant MARTIN S. PANG in King County, Washington on or *938about January 5, 1995, did knowingly and maliciously cause a fire or explosion located at 811 Seventh Avenue South (the Mary Pang Warehouse), Seattle, which was manifestly dangerous to any human life, including firemen;

Contrary to ROW 9A.48.020 (1) (a), and against the peace and dignity of the State of Washington.

¶127Therefore, according to the amended Information, the person sought is charged with four counts of Murder in the First Degree and one count of Arson in the First Degree. These crimes, [now] under scrutiny, correspond [to crimes] found in the Brazilian Criminal Law Code, in Arts. 121, as to Murder, "caput” [first sentence] - Intentional Homicide, and 250, "caput” Intentional Fire-Setting.

¶128In a preliminary manner, after the fire and death of the fire-fighters, who intervened while carrying out their duties, occurred, at the beginning of January of the year mentioned, there is no [reason] here to talk about extinction of punishment, through the imposition of punitive action, whether according to State of Washington legislation, or Brazilian criminal law. The State of Washington sentencing guidelines, according to the Revised Code of Washington are found in fls. 356-358. References concerning the Brazilian Criminal Law Code, are found in Article 109, I, as to the homicide found in Article 121, "caput”, and in Article 109, III, for Intentional Fire-Setting (Article 250).

¶129Arson in the First Degree has the following definition in Section 9A.48.020 (fls. 135):

¶1309A.48.020. Arson in the First Degree.

¶131(1) A person is guilty of Arson in the First Degree if he knowingly and maliciously:

¶132(a) Causes a fire or explosion which is manifestly dangerous to any human life, including firemen.

¶133Murder in the First Degree is defined in Section 9A.32.030, cited (fls. 134):

¶134(1) A person is guilty of Murder in the First Degree when:

(c) He or she commits or attempts to commit the crime of either: (1) Robbery in the First or Second Degree, (2) Rape in the First or Second Degree, (3) Burglary in the First Degree, (4) Arson in the First or Second Degree, or (5) Kidnapping in the First or Second Degree, and in the course of or in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants: except that in any prosecution under this subdivision (1) (c) in which the defendant was not the only participant in the underlying crime, if established by the defendant by a preponderance of the evidence, it is a defense that the defendant:

(i) Did not commit the homicidal act or in anyway solicit, request, command, importune, cause or aid the commission thereof; and

*939(ii) Was not armed with a deadly weapon, or any instrument, article; or substance readily capable of causing death or serious physical injury; and

(iii) Had no reasonable grounds to believe that any other participant was armed with such a weapon, instrument, article or substance; and

(iv) Had no reasonable grounds to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.

¶135Counsel for the person sought states that deferment of extradition for Arson in the First Degree with risk of life is impossible, because it would result in double punishment for the same act, a bis in idem. [The Defense] states that extradition [should] be granted only for Arson in the Second Degree. And states (fls, 287):

It is understood, then, that we are dealing with a bis in idem. How can someone be accused, simultaneously, of causing damage to a person’s health, and also of bringing him / her into danger? Obviously, damage always involves risk, which is a necessary step to accomplish the other. Mutatis mutandis, it would be the same as to attempt to convict someone of murder and of hodily injury, because before killing someone, damage was done to the physical integrity of the victim.

In fact, there is an apparent conflict of norms in this case, which can be solved by the "principle of absorption.”

¶136Further, the Defense adds (fls. 288):

If deaths occurred and if the charge deals, equally, with the crimes of Murder, it seems clear that this more serious event absorbs the crime of endangerment. Otherwise, one act would be generating double punishment, which is inadmissible, according to Brazilian law.

¶137Furthermore, counsel for the person sought understands that the Federal Supreme Court Jurisprudence has ruled that bis in idem cases are barred in extraditions, quoting what happened in Extradition No. 543, assigned to the Honorable Justice Moreira Alves, where it was decided that the crime of illegal coercion would be absorbed by the crime of Robbery. Therefore, the request for extradition was granted for the crime of Robbery only.

¶138Moreover, concerning Intentional Homicide, it is important to mention that "the absolute inexistence of elements as to the intent to kill renders the request faulty in that respect unless, according to American Law, the intent has no bearing (. . .). In this event, however, it would be a case of objective responsibility, which would render the agent’s action atypical, according to Brazilian Law and therefore, it would impede the granting of extradition” (fls. 293). Along the same lines, the Defense finishes, by citing (fls. 295):

¶139Therefore, the motion is for granting partial extradition for the crime of Arson in the Second Degree and denial [of extradition] for the charges of Murder.

¶140*940Finally, the Defense states, that the requesting State must stipulate that the Defendant must not receive a sentence of more than thirty (30) years, according to the Criminal Law Code, Article 75.

¶141As to granting extradition, "only for the crime of Arson in the Second Degree”, the opinion of the Brazil’s Attorney General reads (fls. 370): "Now, Arson in the Second Degree is not an issue [here].

¶142According to document (fls. 302), not translated, attached by the Defense Attorney, one can infer that Arson in the Second Degree is that which results only in material damages”.

¶143Further, regarding Non-Intentional Homicide, the Federal Attorney General’s opinion reads (fls. 370 / 371):

The Attorney’s proposition that the extradition must be granted only for Non-Intentional Homicide and not for Intentional Homicide is also irrelevant. The Federal Supreme Court is not judging the extradites at this time.

¶144Therefore, I don’t think it is possible, in this particular case, to lower the charges against the person sought at the extradition hearing, [charges] brought by the Justice System in King County, Seattle, State of Washington, from Intentional Homicide to Non-Intentional Homicide and from Intentional Fire-Setting to Negligent Fire-Setting, according to the Brazilian criminal [law] system, as the Defense intends.

¶145Charged as Arson in the First Degree and Murder in the First Degree (four counts), based on legislation [now] in force in the requesting State, the requested State, which has the corresponding crimes of Intentional Fire-setting and Intentional Homicide has no right to condition the granting of extradition, so that the trial process of the person sought in the Requesting State, occur in conformity with the specific legal parameters of the Requested State’s legislation, i.e., according to Article 258 of the Brazilian Criminal Law Code, as cited:

Article 258. If serious bodily harm results from an intentional crime of common danger, the prison sentence is increased by half; if it results in death, it is doubled.

In the case of negligence, if bodily harm results from the act, the penalty would be increased by half, if it results in death, the sentence imposed for Non-Intentional Homicide is increased by one third.

¶146Concerning the above, Celso Delmanto remarks in the Criminal Law Code Annotated, pgs. 449-450: "It is a case of praeter dolus, because the results are not desired by the agent, in which case there may be formal conflict of Article 121 or 129 with the crime of common danger. (. . .) In the case of injury or death of several persons, the enhancement is applied Only once, and it is not applied in formal conflict. Therefore, if the crime of Intentional Fire-Setting results in four deaths, due to the agent’s negligence, it will be classified as only one.”

¶147I understand, however, that the debate of what we call, among ourselves, the "classified forms of common danger crimes”, cannot take place during the *941extradition process, if it results in dual criminality, where the facts are typical not only in the laws of the requesting State hut also in the laws of the requested State.

¶148The analysis of the quaestio juris is also recommended in this case, concerning the impracticality of granting extradition, as to crimes of Murder in the First Degree, because it deals with the hypothesis of objective responsibility, prohibited within the Brazilian criminal law system, according to Article 19 of the criminal law code, citing:

Article 19. The agent only answers for the result that specifically aggravates the penalty if [he] is, at least, negligent in causing it.

¶149Celso Delmanto comments on this device introduced by Law No. 7209 / 1984 (Op. Cit., pg. 34):

With Article 19, the criminal [law] revision of '84 wanted to impede the punishment of someone for mere objective criminal responsibility. It determined that the agent is responsible for the result that "specifically” aggravates the penalty, only when he caused it, "at the very least by negligence”. It is explained by the [following] example: In the crime of Robbery, Article 157 Par. 3 determines that, if serious injury or death results from the violence, the penalty is especially aggravated. In implementing Article 19, the aggravating [clause] will only apply to the agent if he has caused that result (serious injury or death), at least by negligence. Therefore, if the result of the aggravating act was not due to the agent’s intent or negligence he will he responsible for the Robbery, but not for the aggravating result in Article 157 Par. 3, because of the restriction in Article 19. However, it is important to note that the objective of the device in Article 19 is to limit the penalty. It should not be used to unduly exacerbate it. Therefore, intent cannot be dispensed with (substituting it for negligence) in the other qualifying and aggravating clauses, which must be present due to the agent’s intent (direct or circumstantial).

¶150The Explanation of Motives which accompanies the new Revised Criminal Law Code remarks that "the rule covers all enhancement clauses found in the causal separation of the action” (No. 16). Celso Delmanto observes, in turn: "It is important to notice that it only affects crimes qualified (or aggravated) by the result, i.e., the ones with a result that especially aggravate the penalty. It is not applied to qualifying or aggravating clauses that are covered by the agent’s intent (and not only by negligence)’ ” (op. Cit., pg. 36).

¶151It is important to observe that, in this particular case, the charge of Murder in the First Degree in the Court of origin, against the person sought for extradition, is found in Section 9A.32.030 (1) (c), which states as guilty of Murder in the First Degree the person who commits or attempts to commit the crime of either: (1) to (3) - omitted; (4) Arson in the First Degree, (. . .) and in the course of or in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants: except that in any prosecution under this subdivision (1) (c) in *942which the defendant was not the only participant in the underlying crime, if established by the defendant by a preponderance of the evidence, it is a defense that the defendant:

(i) Did not commit the homicidal act or in anyway solicit, request, command, importune, cause or aid the commission thereof; and

(ii) Was not armed with a deadly weapon, or any instrument, article; or substance readily capable of causing death or serious physical injury; and

(iii) Had no reasonable grounds to believe that any other participant was armed with such a weapon, instrument, article or substance; and

(iv) Had no reasonable grounds to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.

¶152Therefore, it is understood that the law of the Requesting State considers as autonomous the crime of Murder in the First Degree, the death of a person during the practice of the crimes of Robbery, Rape, Burglary with Felonious Intent, in the First Degree, Arson in the First Degree or Kidnapping, and in furtherance of said crime and in immediate flight therefrom.

¶153In our system, praeter dolus crimes are compounded, as Celso Delmanto writes in the above mentioned work, pg. 36 "because the agent is punished due to criminal intent, for he acted with that end in mind. And he is sanctioned for negligence, for having caused a result other than what he wanted. Example: Article 129, Par. 3, in which the agent is punished for criminal intentional conduct (injury) and for the non-intentional result (death)”.

¶154Regarding the crime of Arson, according to Article 250, "caput”, of the Criminal Law Code, among the causes that increase penalties by one third, listed in the above mentioned Article (1) there is no express mention of resulting serious injury or death. There is, however, [mention] that the subject is defined in the CC [Criminal Code] Article 258 in the same Chapter "Of Common Danger Crimes” (Article 250 to 259), with this general rule concerning "qualified forms of crimes of common danger”:

Article 258. If serious bodily injury results from an intentional crime of common danger the prison sentence is increased by half, if it results in death, it is doubled. In the case of negligence, if it results in bodily injury, the penalty is increased by half; if it results in death, the penalty imposed is the one used for Non-intentional Homicide, increased by one third.

¶155Celso Delmanto observes that it is a case of praeter dolus, "because the results are not desired by the agent, in which case there could be formal conflict with Article 121 or 129 with the crime of common danger. According to CC, Article 19, it is essential that the resulting injury or death was caused by the agent, at least by negligence. If the result was not due to negligence, but only because of a causality relation, only the simple sentence for crimes [of common] danger will apply and not the qualifying enhancement.”

¶156One can see then, that in our system, the resulting death in the case of a crime *943of common danger, among them, Arson, acts as an enhancement, aggravating the penalty; but in the Requesting State’s system, it is [an] autonomous [crime].

¶157However, I do not see this difference in the legal system, as an obstacle in granting extradition.

¶158Still we need to evaluate whether the principle of subsidiarity, admitted in our jurisprudence should be applied here in such a way that the crime of Arson be absorbed by the [crime] of Murder in the First Degree, for which, in this case, it is supposed to be the Arson which occurred in the commercial building [that belonged] to the parents of the person sought for extradition, charging him with the responsibility for the criminal wrong.

¶159In Extradition No. 543 - Federal Republic of Germany, assigned to the Honorable Justice Moreira Alves, this court decided, applying the principle of subsidiarity which His Honor analyzed in the following manner in his learned opinion (RTJ 138-428):

5. The Defense is equally correct, when it states that the extradition request cannot further be granted for the crime of illegal imprisonment contained in the German Criminal Code Par. 239 (1).

¶160In fact, concerning crimes of Robbery and Illegal Coercion (which would be how the charged deed could be framed by the prison sentence, as a crime of deprivation of freedom), there is an apparent conflict of rules solved by the implied principle of subsidiarity, because it deals with compounded Robbery, one of its elements being Illegal Coercion, as Heleno Cláudio Fragoso writes (Ligoes de Direito Penal) [Criminal Law Lessons], General Part, No. 361, pgs. 352 - 353, Fo-rense, Rio de Janeiro (1983):

Subsidiarity is implied when the crime defined by one of the rules is an element or a legal circumstance of another crime. There is subsidiarity in the case of a complex crime (CC, Article 103). It is said to be complex a crime which has as element or aggravating circumstance, a fact which on its own constitutes a crime. So, Robbery (CC, Article 157) includes Theft (Article 155) and Illegal Coercion (CC, Article 146) or Threat (CC, Article 147) . . . these rules leave no room for formal conflict, because there is an implied subsidiarity.

¶161It happens that, in this case, the crime of Arson in the First Degree is an element of the crime of Murder in the First Degree, according to Section 9A.32.030 (1) (c) of the Revised Code of "Washington [RCW],

¶162Also, it must be considered that the Original Information did not mention a charge for Arson in the First Degree, but only four counts of Murder in the First Degree, according to the attached transcript. Only in the Amended Information, fls. 178 - 179, there appears "Count V” in which the accused Martin S. Pang is accused of the crime of Arson in the First Degree. The Amended Information considered such "crime of the same or similar character and based on a series of acts connected together with another crime charged herein, which *944crimes were part of a common scheme or plan, and which crimes were so closely connected in respect to time, place and occasion that it would he difficult to separate proof of one charge from proof of the other, committed as follows:

(omitted).”

¶163It is my opinion, however, that in this particular case, we cannot invoke the subsidiarity principle.

¶164In fact, if the extradition is granted without including the crime of Arson in the First Degree, due to the subsidiarity rule, the eventual characterization of Murder in the First Degree in the Requesting State, will not be possible, because there wouldn’t be a way to have the extraditee as the perpetrator of the crime of Arson in the First Degree, an element of the crime of Murder in the First Degree. If the criminal responsibility of the person sought is not definitely ascertained by Arson in the First Degree, the charge of Murder in the First Degree is vacated.

¶165It is then, like the case now being examined: The subsidiarity rule cannot be invoked, in order to exclude a certain crime from the extradition deferment, when its examination is the basis for trying another crime, which is the object of the charge.

¶166If the charge of Arson in the First Degree is upheld or not, or if it will be reduced to Arson in the Second Degree - which is what the Defense wants - cannot be taken into consideration in this extradition hearing. The competent Court in the Requesting State must rule on this issue. What I understand here is that it is not possible to frustrate the trial of extraditee in the Requesting State for the basic crime of Arson in the First Degree, invoking, in this case, the principle of subsidiarity, in order to remove the base crime from the extradition grant, i.e., Arson in the First Degree. If it [the crime of Arson in the First Degree] cannot be investigated, because the extradition would not include it, its consequence would be the eventual infeasibility of also imputing responsibility to the extraditee for the crimes of Murder in the First Degree, according to Section 9A.32.030, which assumes guilty of Murder in the First Degree, one who commits or attempts to commit, among others Arson in the First Degree.

¶167Well, in this particular case, if Extradition will not be granted to allow the ex-traditee to stand trial also for Arson in the First Degree, according to the Amended Information, it is certain that the trial for Murder in the First Degree will not be possible, which, in this particular case, is intimately connected with the crime of Arson in the First Degree.

¶168Therefore, I feel that in this situation, the crimes which are the object of the Information and the Amended Information in the Requesting State, cannot be separated, in order to grant the extradition as to some and deny it as to the other, [which] is the basis of the former.

¶169Finally, concerning the sentences to be imposed for crimes with counterparts in the laws of both States, the only matter of consequence, is to keep in mind the *945limitations rendered sacred in our jurisprudence, where the extradition is not conditioned to the non-imposition of a life sentence. I have stressed this in a hearing of December 2, 1993, Extradition No. 599 -5/120, where I was the Assigned Justice:

6. Nor is there room for any restriction as to the fact that the law of the Requesting State allows for a life sentence as a maximum punishment for the crime charged against the extraditee (Extradition No. 426, RTJ [expansion unknown] 115 (3): 969, Mar. 86 ("leading case”); Extradition No. 429 assigned to Just. Djaci Falcao, RTJ 119 (1): Jan. 22, 87; Extradition No. 472, 1, 72, assigned to Just. Moreira Alves, DJU [expansion unknown] .05.89; Extradition 486, assigned to Just. Galvao Gallotti, RTJ [expansion unknown] 132 (3): 1.083, Jun. 90; Extradition No. 507, assigned to Just. limar Galvao, DJU [expansion unknown] (03.09.93).

¶170For better clarity, the annotation for Extradition Hearing 507, also requested by Argentina and assigned to the Honorable Justice limar Galvao (hearing held in full session on September 25, 1991) is hereby transcribed:

EXTRADITION. A [FOREIGN] NATIONAL FROM THE REQUESTING STATE, WITH DECREED ARREST WARRANT, ACCUSED OF QUALIFIED ATTEMPTED ROBBERY, WHICH RESULTED IN THE DEATH OF THE VICTIM. LEGAL POSSIBILITY OF A LIFE SENTENCE. COMPLETE ADHERENCE TO REQUIREMENTS, ACCORDING TO THE LAW AND THE TREATY.

¶171Petition granted, without restrictions as to the life sentence, which was considered improper, according to STF [expansion unknown] jurisprudence, according to Extradition No. 426 (09.04.85) and according to our legal charter, reaffirmed for almost a century, which is clear as a bell about the necessity for the commutation of only corporal punishment and death sentences (Law No. 2.416 /1911, DL No. 394 38 and Law No. 6.815 /801). (DJU 09.03.93)

¶172Moreover, fls. 391 makes it clear that the gradual increase or decrease of the penalty is possible under the following conditions:

6. In the case of Murder in the First Degree, the scope of the standard sentencing range, established by the State of Washington Sentencing Guidelines is from 240 to 320 months. In fact, the judge can depart from this standard only if he decides that there are special aggravating circumstances. To order a sentence beyond the standard range the judge must conclude that there are compelling and substantial reasons to do so. Any sentence beyond this range cannot be excessive and must be established by strong evidence. All sentences for Murder in the First Degree will run consecutively.

¶173Therefore, once the difficulties presented by the Defense are removed and taking into consideration that the arrest warrant against the person sought for extradition was issued by a competent Judge, and the request [for the extradition] was well documented, and the charges against the person sought for extradition have corresponding laws in the Brazilian Criminal Law Code, and it is true that the alleged criminal acts occurred in the requesting State’s territorial jurisdic*946tion, and if it is inappropriate to speak of penalties, it must be concluded that the extradition can be granted, without restrictions.

¶174Based on the above, I grant the request for extradition, without restrictions, therefore affirming the opinion of the Office of Brazil’s Attorney-General.

¶175[signed] J. Néri

¶176ALM

¶177PLENARY

¶178EXCERPT FROM THE MINUTES

¶179EXTRADITION NO. 654-1

¶180ORIGIN: THE UNITED STATES OF AMERICA

¶181ASSIGNED TO: JUST. NÉRI DA SILVEIRA

¶182REQUESTED BY: THE GOVERNMENT OF THE UNITED STATES OF AMERICA

¶183EXTRADITEE: MARTIN SHAW PANG

¶184ATTORNEYS: PAULO FREITAS RIBEIRO, ET AL

¶185Decision: Just. Mauricio Corréa requested the documents, after the vote by Justice Néri da Silveira (Assigned), granting, in its entirety the request for the extradition, without any restrictions whatsoever. Dr. Cassiano Pereira Viana represented the Requesting State and Dr. Arthur Levigne represented the person sought for extradition. Plenary Session 11.30.95.

¶186[approximately 14 blank lines]

¶187Presided by the Honorable Justice Celso de Mello, Vice-President. Present at the session were: The Honorable Justices Moreira Alves, Néri da Silveira, Sydney Sanches, Octávio Gallotti, Carlos Velloso, Marco Aurélio, Francisco Rezek and Mauricio Corréa.

¶188*947Excused absences: Honorable Justices Sepúlveda Pertence, President, and limar Galvao.

¶189Brazil’s Attorney-General Dr. Geraldo Brindeiro. [signature illegible]

¶190Luiz Tominatsu Secretary

¶19112 /18 / 95 FULL SESSION

¶192EXTRADITION No. 654-1

¶193UNITED STATES OF AMERICA VOTE REVISION

¶194THE HONORABLE JUSTICE MAURÍCIO CORRÉA : - After the Honorable Justice Néri da Silveira’s vote, stated on the record, during Extradition Hearing No. 654,1 requested a revision, even though I agreed with his vote. I thought it would be prudent to ponder on the quaestio juris, regarding the restriction issue, as to the life sentence allowed by the criminal laws of the Requesting Member-State.

¶195To refresh the memory of the [members] of the Plenary as to the facts, I indulge in reading Diplomatic Note No. 83, contained in fls. 5-6 of PPE 217, enclosed:

The facts of this case indicate that on January 5th, 1995, a little after 19:03, the Seattle Fire Department responded to a fire at the Mary Pang Food Warehouse, Inc. While fighting the fire several firemen got to the first floor in the flooded warehouse. Without any warning, whatsoever, the floor gave in, tumbling the firemen to the basement. Four firemen died in the fire.

On December 13, 1994 an agent of the Bureau of Alcohol Tobacco and Firearms (ATF) was contacted by a witness who said that the “Mary Pang” warehouse was going to be "burned”. The witness told the agent that Pang was advised to remove his personal belongings from the warehouse. On another occasion, Pang told the witness, in detail, how the fire would occur and it really happened in that manner. Pang also removed his personal belongings from the building on another occasion.

In December, Pang took a close friend to the warehouse and told him that the food company was not doing well. He said that the warehouse would *948burn down in January and that it would look like transients set the fire. Pang told a number of other people that the warehouse would burn down.

After the fire Pang told another witness that it looked like some transient had set the warehouse on fire and described how it had happened. Pang described how the fire happened even before the information had been announced by the investigators. Inevitably, Pang’s statements to his friends came very close to a confession. Arson investigators announced that the fire had been intentionally set, causing the death of four fire-fighters.

Murder is described in Article II Paragraph I of the Treaty of Extradition Between the United States of America and the United States of Brazil. Seizure of Assets is described in Article XX of the [same] treaty.

¶196Due to the commission of these crimes, an arrest warrant was issued for Murder in the First Degree and Arson in the First Degree (fls. 133, 134 and 163). The crimes answerable by the person sought for extradition are punishable with a life sentence in Washington, American territorial jurisdiction, where the crimes were committed (fls. 134-6).

¶197After stressing the issue of restriction, which the evolution of this Court’s jurisprudence no longer allows, the Assigned Justice concluded, as to the question of a life sentence:

Therefore, once the difficulties presented by the Defense are removed and taking into consideration that the arrest warrant against the person sought for extradition was issued by a competent Judge, and that the request for the extradition was well documented, and that the charges against the person sought for extradition have corresponding laws in the Brazilian Criminal Law Code, and being true that the alleged criminal acts occurred in the requesting State’s territorial jurisdiction, and since it is inappropriate to speak of penalties, it must be concluded that the extradition can be granted, without restrictions.

¶198Based on the above, I grant the request for extradition, without restriction, therefore affirming the opinion of the Office of Brazil’s Attorney-General.

¶199I have tried to follow, as much as possible, the predominant jurisprudence of this Court, especially concerning internal economy, outside the realm of laws that deal with citizens’ freedom, due to the inconvenience and uneasiness that a change of direction can cause in the lives of people, budgets, criteria and organizational charts of state agencies, and activities of private enterprises.

¶200In this case, the situation reveals that the person sought for extradition, and not yet tried, only with an arrest warrant issued against him, came to live in Brazil. It seems to me that due to the above, I have an opportunity to state what I think about the thema decidendum. Especially because, as far as I know, there is a difference of opinion about this subject, in view of what Justice Pertence himself stressed, in extradition Hearing No. 598 (RTJ 152) (431-438), underlining that "safeguarding my opinion in the [above] referred preceding case overruled by Justice Paulo Brossard, until conditions exist for the reexamination of *949the problem - and I refer to the demand of the commutation of life sentences - according to our jurisprudence. I agree with the Honorable Justice Assigned [to this case], not granting extradition”.

¶201Justice Néri da Silveira also voted for the restriction in that Hearing, alleging that in Extradition 507, "I also adopted the position of establishing a restriction in granting the request, so that the life sentence be commuted to a maximum sentence of thirty years”.

¶202In Extradition Hearing No. 426 of May 22, 1985 requested by the United States, where the assigned Justice Rafael Mayer was overruled, Just. Rezek observed that the law dealing with extraditions at no time restricts a life sentence from an extradition decree. It [the law] refers specifically to death penalty cases. And even if that were the case, says His Honor, because the treaty with the United States dates from the 60’s, the treaty and the supervenient law would be placed in conflict. And [he] ends [by saying], "I ask myself if we would not be led by logic to one day deny extradition, if we ascertained that during the process in which the person sought for extradition was convicted, [later] there was evidence that there had been a breach of the confidentiality rule (being that Par. 9 of the same constitutional Article prohibits that; or because in the requesting State there is no guarantee of a contradictory criminal element; or because there [in that State] there is no provision for [trial by] jury for intentional crimes against life.” The list in Article 153, with all due respect, does not seem to be feasible to me as a set of parameters to be imposed on the requesting State in the extradition process.

¶203Once the Assigned Justice was overruled in that extradition, all the other Justices voted along with Justice Rezek, and this resulted in the new direction adopted by the Court, which no longer restricts a life sentence. I would like to point out that there were some opposing votes, because it dealt with the issue that the person sought for extradition had already been sentenced to life in prison in the requesting Country. This happened, for instance, in the case of Justice Passarinho, who added: "However, the situation before us is extremely unique. The person to be extradited received a life sentence, escapes to Brazil and attempts to get his sentence changed. Based on that, I do not believe that he can find himself under our protection in that case.”

¶204I cannot, Mr. President, lend to a treaty or to an ordinary law the greatness and import of the constitutional rule. The Federal Constitution of '88, as an example of the old text, reaffirmed as dogma, in its Article 5, clause XLVII (b), that there will be no life sentence in Brazil, and CC, Article 75 decreed that a prison sentence cannot go beyond thirty years. This Article limits the prison sentence time, conforming exactly with the present constitutional dictamen, as it was the case with the Constitutions of '37 (Article 122, 13), '46 (Article 41 Par. 31 and '69 Article 153 Par. 1) which prohibited life sentences. Now, if that is the case, how can we give up a constitutional precept in face of a request for the extradition of an individual who one way or another, subjects himself to Brazilian Laws?

¶205It is not a matter of doing a favor to an escaping criminal, but preserving the in*950tegrity of Brazilian sovereignty, whose Greater Law established, in a solid clause, the inexistence of life sentences within [our] national territory to all Brazilians and to all who live in this jurisdiction.

¶206It is true that Law No. 6.815 of 08.19.80, in Article 91, clause III, restricts the handing over of the person sought for extradition to the Requesting Country, unless it is conditioned to a stipulation of commutation of the physical punishment or death sentence. It does not speak of a life sentence, and because of that omission I do not see that implicitly it [life sentence] is being contemplated, due to the origin of the same constitutional guarantees which do not reinstate the penalties of life sentence or death.

¶207I do not think that if the Constitution did not speak of forced labor or death penalty, that our jurisprudence could be interpreted as putting its seal of approval on extraditions so that sentences of that nature could be served. Under the 'aegis’ of the constitution, there is no distinction between them. Because the death penalty (except in case of declared war, according to Art. 84, XEX), forced labor, exile and cruel [punishment], are irrelevant and inapplicable, just like life sentences, the former as to chronological scale, the latter, [because it is] mentioned in the list of exceptions. Because the ordinary law did not mention life sentences, that does not mean that it can be included in the extradition hearing, in order to be implemented in the requesting Country. It is because the Federal Constitution prohibits life sentences, in the list of penalties that do not exist in Brazil.

¶208I’m not worried about the treaty. It can say what it wants, but it cannot override the constitutional ban, which does not allow life sentences in this Country, and for that very reason the Alien who lives here [is protected by it], and extradited he may be, but it will have to be with the restriction of a life sentence in the Country where he will serve his sentence.

¶209I do not see where a comparison can be made concerning identity of situations, [or] if we can argue about breach of confidentiality, when it caused someone to be convicted, or on another aspect, [if we can debate] the right of cross examination in criminal procedures, or why there is no provision for a trial by jury in a given State. U cannot see how] such cases equally compare with the issue of life imprisonment. While those are concepts which, no doubt, can be elevated to constitutional decisions, just the same they cannot be defined individually, as life imprisonment, which touches, by its very nature, on the status libertatis of persons. These other principles are of constitutional nature, but they are not intrinsically invested with the form and physical characteristics of the penalty, thus comprised by genesis, and banned, repeatedly by the last Federal Constitutions, as they have been expunged from our penal tradition. I would say it is true that they are more rites of process, solemn and of a higher legislative degree, [as they] deal with human rights, but they do not directly and in a straight forward manner refer to the type of penalty, as defined by Article 5 clause XLVH (b) of the Public Charter.

¶210It is one thing to respect the working mechanism of constitutional guarantees - the Jury, the precepts of confidentiality and cross examination - and another [to *951respect] the penalty to be implemented. "While those are implemented in the fulfillment of prerogatives inherent to all citizens, the penalty is the result of State interference to punish the perpetrator. The State that guarantees the practice of law is different from the State that repeals the death penalty. Brazilian Law repeals life imprisonment, thus its elevation to the heights of constitutional dogma.

¶211A citizen who is being judged for extradition purposes is under the protection of the constitutional guarantee clause that does not allow life imprisonment, and to grant it under those conditions, in my opinion, would be to attack an absolute precept resulting from this constitutional guarantee.

¶212In Extradition Hearing No. 426 a "leading case” which established a divisory line on the restriction, it must be emphasized that the extradition mentioned dealt with an American Escapee who was serving a life sentence, and in this procedure we verified that the person sought for extradition was only under deferred provisional arrest, but subject to a life sentence penalty.

¶213As this subject has been discussed and reiterated a number of times, so that everyone is familiar with it, I refrain from expounding on it in greater detail.

¶214With the above considerations [in mind] I vote with the Hon. [Justice] Assigned [to the case], concerning the portion related to granting the extradition request. I oppose him, with all due respect, only with the proviso that the Requesting State, in the event that the person sought for extradition is condemned to life in prison, that his prison sentence be limited to a maximum of thirty years.

¶215[Signature illegible]

¶21612/18 / 95 FULL SESSION

¶217EXTRADITION No. 654-1 UNITED STATES OF AMERICA

¶218VOTE

¶219THE HONORABLE JUSTICE FRANCISCO REZEK - In opening, with all due respect, I would like to disagree with the Honorable Justice Mauricio Cor-réa where His Honor disagrees with the Assigned Justice as to the 30 year restriction, in lieu of life imprisonment.

¶220Try as I might, the philosophical distinction established by His Honor in his learned vote, makes no sense to me. I cannot fully comprehend what could be this intrinsic virtue of the constitutional rule which prohibits life sentences in Brazil, to the point of differentiating such rule from others that, in the very same Constitution, talk about other characteristics of the criminal process, of punishment and imprisonment of persons within the jurisdictional territory of this Republic.

¶221*952The Brazilian legislature provides a long list of guarantees in the name of the Brazilian State. It promises the people certain guidelines of criminal procedure and consequences for criminal acts, assuming that in Brazil, due to our jurisdiction and action of our [law enforcement] authorities, someone is being judged. I do not know under what pretext the Brazilian Constitution can make guarantees of a constitutional level to the person undergoing a [legal] procedure in another sovereign [State]. I also do not know on what technical, scientific or moral grounds, a certain person, because he / she was in a given moment of his / her life in Brazilian territory, would be covered by the [same] guarantees that the Federal Constitution allows a Defendant going through the criminal process in Brazil, even if [this person] is sent to another sovereign State, due to a decision of this Court, so that notwithstanding, the jurisdiction [of that Country] be imposed and not ours.

¶222Our legal system is clear when it says what needs to be asked of the Requesting State as a compromise, when the Extradition Act is brought to completion: That it [the Requesting State] abstain from imposing the death penalty, physical punishment and degrading or humiliating penalties; that it give credit for the time served in Brazil, and certain other things. Absolutely not, the commutation of a life sentence; absolutely not, overseas, under another flag, a prison restriction that the Brazilian legislature established to be valid only among us.

¶223It seems to me that in this case, the Court should preserve its jurisprudence, established the moment the opinion of the Attorney-General, Professor Cláudio Fontelles was refused, in the sense that the 30 year limit should be imposed on the foreign sovereignty as a condition of the extradition, because it dealt with a rule somehow vested with transcendence.

¶224I would like to ponder [the fact] that, in this case, the Defendant is being accused by the Justice [System] of the State of Washington, in the United States of America, of Arson, which occurred in the city of Seattle.

¶225The laws are clear that the penalties are severe. Arson in the First Degree, as described in the report, may lead in itself, to a life sentence. Murder in the First Degree, only one charge may lead, in itself, to a life sentence. As valid as the accusation of the United States of America may be, we would have a possibility of an accumulation of five life sentences, being that the Information, after univocal description of the facts says, however, that he is guilty of Arson, but that he is also guilty of Murder in the First Degree - four times.

¶226He is being accused of having caused the fire of his own store, in order to obtain certain security or insurance advantages. There is a candid aspect in the report: The very Arsonist would have leaked out, ahead of time, that the store would burn down at that time, in order to avoid that [the lives] of innocent persons be exposed. But it is clear that whoever causes Arson, assumes the risks of his deed. And it happened that, in rendering assistance, four firemen who were on the top floor of the building saw the wooden floor collapse under them and died in the fall.

¶227For a long time the Court is aware that I oppose the practice of imposing restrictions on an extradition. I have been saying this since the seventies. It seems to *953me that it was never the intention of the Brazilian legislature to maintain a restrictive posture. What the law wants, as I was saying, is that no one be extradited due to acts that are not criminal, according to our [law] or if the acts are not punishable, according to general rules. But when the main fact, when the brunt of the accusation justifies the extradition, I believe we should not scrutinize valid criminal process of the requesting Country as to accidental events, parallel crimes, in order to detect, in the perimeters of the charges, a lack of dual criminality rules or irrelevancy, [therefore] opposing restrictions to the measure.

¶228I was overruled here. The Court decided, unanimously that these restrictions can and should be applied, under the pretext of a clearer, more detailed view of lack of dual criminality. The accusation must be examined considering its entire context; and we will do so, step by step, number by number, topic by topic, detecting the occurrence of dual criminality without which extradition cannot be granted, or it is only partially granted.

¶229Overruled, I must obey the jurisprudence which for years has prevailed by the majority rule. What grieves me in this particular case, and renders the decision difficult is not the issue of the thirty year restriction, but [the manner which] the conduct of the person sought for extradition fits the criminal law of the Requesting State and our own legal system. What the charge does, in this case, after describing the human conduct to be studied, is to say that it falls under Arson in the First Degree and also in Murder in the First Degree, once, twice, three and four times. Concerning the severity of the penalties expected by the Prosecution in its charging efforts, this does not make a lot of difference, being that each one of the five charges herein accumulated would justify, in itself, a life sentence.

¶230What I cannot see is dual criminality in the case of Murder in the First Degree. State of Washington Law says:

Arson in the First Degree: A person is guilty of Arson in the First Degree if he knowingly and maliciously causes a fire or explosion which is manifestly dangerous to any human life, including firemen.

¶231This is exactly what happened. And for Arson in the First Degree, depending on the circumstances, and obviously, on the consequences, the prison [term] can be either moderate in its chronological duration, or life, according to the law of the Requesting State.

¶232Brazilian law, in Article 250 says with respect to Arson:

To cause a fire, risking life, physical integrity or property of another:

Penalty - confinement from three to six years, and fine (. . .).

Penalty enhancement

Par. 1 - Penalties increase by one-third:

I - If the crime is committed with the intent of gaining monetary advantage for personal or third party gain.

¶233*954We have here exactly the hypothesis described on the report. Finally, Brazilian law, in Article 258 says that, if death results from the intentional crime of personal danger the penalty doubles.

¶234According to Brazilian law the hypothetical case presented in the documents would lead to something like sixteen years of confinement. But I am not worried about the question of quantity. I agree with the extradition, aware that the Arson, which resulted in death, can accrue, according to American law, a life sentence.

¶235But it is true that, on the other hand the law of the Requesting State talks about Murder in the First Degree: 1. A person is guilty of Murder in the First Degree when: (here we have many possibilities) c. He or she commits or attempts to commit the crime of either: (item IV) Arson in the First Degree, and in the course of or in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person.

¶236This is the picture I cannot see mirrored, in any way, in the narrative that the Prosecuting Attorney’s Office of Seattle itself has written.

¶237What I see is an impeccable hypothesis of Arson in the First Degree, according to American law, which fits, like a glove, Article 250 of our Criminal Law Code, combined with Par. 1, clause I and with Article 258, because the result was death.

¶238Completely omitting the penalty issue, which varies greatly from country to country and keeping in mind that I do not place this restriction in relation to the length of the prison sentence, with all due respect, I am unable to see in the narrative, a crime other than Arson in the First Degree, which resulted in the death of four people. In the scene described herein we cannot speak of a case of Intentional Fire [arson] followed by death, added to four separate Murders in the First Degree.

¶239My vote grants the extradition, without any restriction whatsoever as to the possibility of a life sentence, only for the crime of Arson with its results, with all its consequences, according to American law; however, without the added charge of four counts of Murder in the First Degree.

¶240[Signature illegible]

¶24112 /18 / 95 FULL SESSION

¶242EXTRADITION No. 654-1 UNITED STATES OF AMERICA

¶243VOTE

¶244THE HONORABLE JUSTICE MARCO AURÉLIO - Mr. President, as was well reported by the Honorable Justice Néri da Silveira, the American *955Government is asking us for the extradition of the person sought, following precise charges against him. He is being accused of having set fire to a commercial facility, maybe, who knows, to escape civil demise. Having acted in that manner, once the fire-fighters arrived at the scene, according to American law, he would have caused the death of four of them.

¶245In opening, Mister President, I see, just like you, Your Honor, that the Diplomatic Note contains a double heading, occurring from the same facts. The first, alluding to Arson in the First Degree, which, in itself once charged as a class "A” felony, in itself is enough to accrue a sentence of life in prison. The second, concerns the four other crimes of Murder in the First Degree. Therefore, there are five charges against the Person Sought for Extradition.

¶246Mr. President, the extradition, according to Law 6.815, of August 19, 1980, assumes the symmetry, and I take this legal precept to mean what it says. Article 77 decrees:

Article 77 - Extradition will not be granted when the fact motivating the request is not considered a crime in Brazil or in the Requesting State.

¶247The question is: Can we fit Murder in the First Degree on the heading of our Criminal Law Code, Article 121, Intentional Homicide?

¶248In my opinion, as to symmetry, the vital dual criminality does not exist.

¶249The Honorable Justice Francisco Rezek underlined perfectly, with great acumen, that the facts in the narrative lead to the charges, according to the Criminal Law Code, Article 250:

... to cause a fire, exposing to risk of life, the physical integrity or the property of another:

Penalty - confinement, from three to six years, . . .

¶250In considering the resulting "death”, there is the qualifying [clause] included in the first portion of Article 258, which says:

... If serious bodily harm results from an intentional crime of common danger, the prison sentence is increased by half - the penalty of Article 250 - if it results in death, it is doubled. In the case of non-intentional [crime] [illegible] and then by lack of prudence, negligence and lack of skill - if bodily harm - as it relates to fire - results from the act, the penalty would be increased by half, if it results in death, the sentence imposed for Non-Intentional Homicide is increased by one third.

¶251Now, looking at the facts in the narrative, my opinion is that the case, from the point of view of dual criminality, taking into consideration Brazilian legislation, fits in the first portion of Article 258 of our Criminal Law Code. Therefore I agree, on this, with Justice Francisco Rezek.

¶252There is the issue of life sentence. The established jurisprudence of this Court, I *956believe, unless I am mistaken, is to lay down conditions for granting the Extradition, when there is the risk of the Person Sought being sentenced to death. Therefore, we proceed with the utmost care in clause XLVII of the list of basic guarantees, as included in the Constitution, Article 5’s "caput”, pertaining to foreign nationals living in Brazil. The question is: Is it possible to distinguish; is it possible to establish the application of the clause, obstructing certain procedure, if it implies in "death”, and not proceed in exactly the same way, when there is risk of a life sentence? What would be the basis for the divergence, if guarantees are placed in the same clause of Article 5?

¶253Article 5 is categorical, in clause XLVII:

XLVII - there will be no sentences:

a) of death, unless war has been declared, according to Article 84, XIX;

b) of life [in prison];

c) of forced labor;

d) of exile;

e) of cruelty;

¶254I do not see how this Court’s Jurisprudence can make a stand as to the restriction, concerning paragraph "a” and not continue in the same vein, since the basis is the same, as to paragraph "b”, concerning the impossibility of a life sentence, as it exists in American law.

¶255First, I am unable - and in this respect I am one of Justice Francisco Rezek’s disciples - to place the Treaty above the Political Document of the Republic [Constitution]. I look at its content and I place the treaties at the same level as our ordinary laws.

¶256Second, concerning specific law, which some think it is demanded by constitutional rule, we do have that. Our Criminal Law Code states that no one will remain in prison for more than thirty years. Thus, the requirement defined in our jurisprudence is being echoed by the very Brazilian Criminal Law Code.

¶257Therefore, in this case, I remove the possibility for the Person sought for Extradition to answer for Murder in the First Degree - having in mind the material conflict, the four counts, the four Murders - and, further, I also exclude the possibility of [this person] receiving a life sentence, therefore establishing that he cannot remain under the State’s custody for more than thirty years.

¶258I grant the Request [for Extradition] on these terms, therefore, partially.

¶259[Signature illegible]

¶260EXTRADITION No. 654-1 USA FULL SESSION

¶261VOTE

¶262JUSTICE CARLOS VELLOSO: Mr. President, in examining the request for *957extradition, the Brazilian judge must verify if the mentioned criminal acts, according to the laws of the Requesting State, are also typical here, [dual criminality] i.e., if they equally conform, in object, to Brazilian Criminal Law. This is the task we must perform, as to the Request for Extradition.

¶263In this [particular] case, according to what I was able to discern from the dehates, the description is as follows: The person sought caused a fire, which resulted in four deaths. Is that an objective act the same as in Brazilian Criminal law? I have no doubt, in this case, that the objective conduct described in Article 250 of the Penal Code took place in the qualified form described in Article 258 of the same Code. It seems to me that there is no way to escape that. In other words, you cannot have, according to Brazilian law, a crime of Arson and a crime of Murder independently. I cannot fail to exert this control, in view of the request for extradition.

¶264Therefore, I would like to apologize to the Assigned Justice, whose votes I have the habit of following to grant the extradition, exactly as it was done by Justice Francisco Rezek, concerning the crime of qualified Arson (Criminal Law Code, Article 250 with qualifying clauses from Article 258 - Arson followed by death).

¶265Following I review the second issue in debate: The question of restricting a life sentence. In Extraditions Nos. 426 and 486, the Federal Supreme Court implicitly dispensed with the restriction. In Extradition No. 507 - Argentina, my vote was following that [same] jurisprudence. I do not know if we should alter a jurisprudence already stratified and ratified in this Court.

¶266Therefore, with all due respect to the Honorable Justices who believe otherwise, especially Justice Mauricio Corréa, who opened this debate, I vote in this case, with the Assigned Justice, except for the restriction.

¶267I grant the extradition request.

¶268[Signature illegible]

¶26912 /18 / 95

¶270EXTRADITION No. 654-1 UNITED STATES OF AMERICA

¶271FULL SESSION

¶272VOTE CORRECTION

¶273THE HONORABLE JUSTICE MAURÍCIO CORREA - Mr. President, I examined the documentation, particularly from the point of view of a life sentence and I thought it would be prudent to explain my position after my first vote.

¶274I confess that during the debates I was somewhat convinced that I should grant the extradition in its merit, except for the restriction, according to Justice Néri *958da Silveira’s vote. However, I see that this deals with an autonomous crime, and the Foreign National Law demands [the existence] of dual criminality in Brazil. Indeed, the request concerning this point does not specifically conform with Article 250, specially when combined with CC, Article 258.

¶275Because of this, with all due respect to the Honorable Justice Néri da Silveira I will follow the vote of Justice Francisco Rezek, only as it pertains to that, granting partial extradition.

¶276[Signature illegible]

¶27712 /18 / 95

¶278EXTRADITION No. 654-1 UNITED STATES OF AMERICA FULL SESSION

¶279VOTE

¶280THE HONORABLE JUSTICE CELSO DE MELLO - The crimes that motivated this extradition request - Murder and Arson in the First Degree - are wrongful acts subject to a penal sanction constitutionally barred in our legal system (life sentence). Thus, the criminal acts in question within the legal system currently in use in the State of Washington, justify the legal possibility of imposing the penalty qualified by a life sentence on the extraditee.

¶281The issue now being raised by Justice Mauricio Corréa assumes indisputable legal relevance, because it consists in defining the theme pertinent to the relationship between two regulation standards, within the emerging context of the present cause, - one, intimately joined in international treaties, and another based on constitutional statute - standard regulations that are clearly revealed as unmatched in degree of validity, efficacy and authority.

¶282It is necessary to accentuate, in this respect, that the standard derived from international treaties, within the Brazilian legal system, allows the placement of these acts of public international law, in the hierarchy of sources, in the same plane and degree of efficacy given to internal laws of an infra-constitutional character. (JOSÉ ALFREDO BORGES, in Revista de Direito Tributário [Taxation Law Magazine], vol. 27-28, pg. 170-173; FRANCISCO CAMPOS, in RDA [expansion unknown] 47 / 452; ANTONIO ROBERTO SAMPAIO DORIA, "Da Lei Tributária no Tempo” [Of Taxation Law in Time], pg. 41, 1968; GERALDO ATALIBA, "Apontamento de Ciencia das Finangas, Direito Financeiro e Trib-utário” [Finance Science Finance and Taxation Law Code, Annotated], pg. 110, 1969, RT [expansion unknown]; IRINEU STRENGER, "Curso de Direito Inter-nacional Privado” [Private International Law Course], pg. 108-112, 1978, Fo-rense; JOSÉ FRANCISCO REZEK, "Direito dos Tratados” [Treaty Laws], pg. 470-475, items 393-395, 1984, Forense, v.g.).

¶283Indeed, there is no hierarchic-standard precedence or priority of these *959international acts, compared to internal positive law, specially according to clauses contained in the Constitution of the Republic, since the external standard practice is not superimposed on what is found in our Basic Law level.

¶284I know, Mr. President that in 1985 this Court changed its orientation as far as the jurisprudence is concerned, which conditioned the handing over of the person sought for extradition to the existence of a formal agreement - previously done by the requesting State - concerning the commutation of the life sentence penalty in temporary sanction of prison sentences (RTJ 108 / 18 - RTJ 111 / 16).

¶285In fact, Extradition Hearing No. 426-3, requested by the Government of the United States of America, led the Federal Supreme Court, per majority vote to declare ", . . irrelevant the allegation for the restriction of life sentence commutation in prison sentences, due to lack of provision in the Law or in the treaty” (RTJ 115 / 969).

¶286Despite the current prevailing orientation in this Court, I do not see - consistent with the votes in previous extradition hearings (Ext. 486 - The Monarchy of Belgium, for instance) - how to give precedence to penalty rules only present in formal agreements (international treaties) or simply of a legal nature as far as rules contained in the Constitution, which prohibit, absolutely, the imposition of any penalty of a lifelong character (CC, Article 5, clause XL VE, b).

¶287This constitutional prohibition, absolute and impossible to bypass, contains, in reality, the very basis of the legal norm consolidated by Article 75 of the Brazilian Criminal Code, which limits the maximum prison sentence to 30 (thirty) years (DAMÁSIO E. DE JESUS, Código Penal Anotado” [Criminal Law Code Annotated] pg. 212, 5th Edition, 1995, Saraiva; CELSO DELMANTO "Código Penal Comentado” [Comments on the Criminal Law Code], pg. 121, 3rd ed., 1991, Renovar; JULIO FABRINI MIRABETE, "Manual de Direito Penal” [Criminal Law Manual], vol. 1/320, item 7.6.7, 9th ed., 1995, Atlas; ÁLVARO MAY-RINK DA COSTA, "Direito Penal - Parte Geral” [Criminal Law - General Part], vol. I, tome II / 579, 4th ed., 1992, Forense; JORGE ALBERTO ROMEIRO, "Curso de Direito Penal Militar” [Military Criminal Law Course], p. 196, item No. 114, 1994, Saraiva; LUIZ VICENTE CERNICHIARO / PAULO JOSÉ DA COSTA JÚNIOR, "Direito Penal na Constituigao” [Criminal Law in the Constitution], p. 112-114, 1990, RT).

¶288From the teachings of CELSO RIBEIRO BASTOS (Comentário á Constituigao do Brasil” [Comments on the Brazilian Constitution], vol. 2 / 242, 1989, Saraiva) for whom the Brazilian criminal legislature ". . . grasped very well the sense of the Greater Law precept”, because in fixing the limit of time mentioned (CC, Article 75), it defined the maximum penalty legally possible in our country.

¶289Having in mind the above reasons, and being loyal to the position assumed by the Brazilian Government position which was rendered sacred in its very own constitution - with all due respect I grant the request now under examination, with the restriction, which I consider necessary, of commuting the life sentence to a prison sentence not to exceed 30 (thirty) years, agreeing completely with the learned vote of the Honorable Mauricio Corróa.

¶290*960It is my vote.

¶291[Signature illegible]

¶292/ csf

¶29312 /18 / 95

¶294EXTRADITION No. 654-1 UNITED STATES OF AMERICA FULL SESSION

¶295[Signature illegible)

¶296VOTE

¶297HONORABLE JUSTICE SYDNEY SANCHES: - Mr. President, concerning the question related to life in prison, my viewpoint has already been affirmed in preceding actions, already mentioned. The Constitution does not regulate extradition. And, when it restricts sentences of death and life in prison, it is obviously regulating what should happen within the Brazilian territory. Yet, it does not impede, nor can it impede that other nations have their own opposing rules.

¶298On the other hand, Brazilian law, which regulates extradition, is explicit in considering it inadmissible, when the requesting State prescribes the death penalty to a crime. Now, as to a life sentence it does not have any prohibition, whatsoever. Thus, I apply the Brazilian law which regulates extradition and which is not incompatible with our Constitution.

¶299As to the remainder, I believe the crime in question is a qualified form of a common danger crime, Fire-Setting, resulting in death. Therefore, the fact described is a crime in Brazil, and it is enough for me.

¶300Concerning classification, if it is a matter that enhances the penalty or if it is a separate crime, I believe that the issue must be resolved, according to the law of the Requesting State.

¶301It does not seem possible, for instance, that this Tribunal can deny an extradition, just because in Brazilian law there is a provision of trial by jury, according to the Federal Constitution, while in the requesting State the trial can be a bench trial or by jury, of a different nature and composition. Nor demand that, in this or that situation, the Requesting State has to concede "sursis”, shelter detention or house arrest, just because in our Law such measures exist, inspired by constitutional law.

¶302I am not prepared to extend our competence that far, unless the Court’s juris-, prudence changes.

¶303*961Therefore, I grant the extradition in its entirety.

¶304[Signature illegible]

¶30512 /18 / 95

¶306EXTRADITION No. 654-1 UNITED STATES OF AMERICA FULL SESSION

¶307VOTE

¶308THE HONORABLE JUSTICE MOREIRA ALVES: - Mr. President, in this case, keeping in mind the peculiarities described by the assigned Justice, it does not seem to me that they can be applied to the precedents invoked as to the issue of dual criminality raised in the requesting State.

¶309Therefore, I follow The Honorable Assigned Justice, including as to the issue of a life sentence, observing in this manner our current jurisprudence.

¶310I grant the extradition in its entirety.

¶311[Signature illegible]

¶31212 /18 / 95

¶313EXTRADITION No. 654-1 UNITED STATES OF AMERICA FULL SESSION

¶314VOTE

¶315THE HONORABLE JUSTICE SEPULVEDA PERTENCE (PRESIDENT): My vote, with the utmost respect to the Assigned Justice and all the others who voted with him, follows the Honorable Justice Mauricio Correa’s vote, His Honor’s corrected vote, that is.

¶316Concerning the object of the extradition, I do not doubt this Court’s power to restrict it in this case. The dual criminality decision, the most basic one, [and] one of the first tasks of this hearing’s passive judgment, is applied to the fact described in the charge to which it answers, or to the sentence imposed on the person sought. Not on the coincidence of legal systems, taken in abstracts (v.g. Extr. 605, Celso de Mello).

¶317"What do we know about the case? Clearly, in the note requesting extradition, it says that, having committed the crime of Arson, during this fire, the collapsing of one of the slabs caused the death of four firemen. The case, to me, is typical of Arson, with the special enhancement clause - the resulting death, mentioned in *962the Penal Code, Article 258. And, furthermore, it seemed to me during the discussion, that not even in American Law there would be the concurrence of Arson with Murder in the First Degree. It is much more than clear, that in American Law, Murder in the First Degree, in the event of Intentional Fire-Setting, presupposes that the agent kill someone to commit the Arson, or in escaping, after setting the fire. A typical case would be someone who wants to gain entry into a building to set a fire and kills the watchman; or, after setting the fire [the agent] kills the watchman who tries to arrest him, when he was leaving. Obviously, this is not the case, as described by the Requesting State in its Diplomatic Note, now the object of this extradition hearing.

¶318But, I am not going to venture into the extremely delicate area - although [a matter over which] the passive extradition court has competence to verify dual criminality in the original State; the Brazilian Law is sufficient for me, where, besides Arson qualified by the resulting death, there can also be Arson concurrent Homicide; if Homicide is committed, according to Article 121, Par. 2, no. 5 "to ensure the execution, cover-up, impunity or advantage of another crime”.

¶319The other question - eligibility or not of the commutation of a life sentence - expected to be exciting, wasn’t, because the Court’s majority preferred to maintain its established jurisprudence.

¶320My position is known. I was overruled, and I reaffirm my opinion. I understand that we must demand commutation of penalties forbidden by the Constitution in Brazil. I am not going to debate the entire issue over again, but I understand that the problem does not conform with the other constitutional guarantees.

¶321An extradition is an international cooperation for penal suppression and, according to me, the imposition of penalties that were found to be offensive to human dignity or to the very function of the penalty as conceived by the Constitution, which for this reason, clearly forbade it, must be excluded from this cooperation.

¶322Therefore, agreeing with the votes of the Honorable Justices Mauricio Corréa, Marco Aurélio and Celso de Mello, I also would demand the commutation of the penalties.

¶323[Signature illegible]

¶324Opinion Appendix "B”

¶325Treaty of Extradition Between the United States of America and the United States of Brazil1

¶326The United States of America and the United States of Brazil, desiring to make more effective the cooperation of their respective countries in the repres*963sion of crime, have resolved to conclude a treaty of extradition and for this purpose have appointed the following Plenipotentiaries:

¶327The President of the United States of America: His Excellency John Moors Cabot, Ambassador of the United States of America to Brazil, and

¶328The President of the United States of Brazil: His Excellency Horacio Lafer, Minister of State for External Relations,

¶329Who, having communicated to each other their respective full powers, found to be in good and due form, agree as follows:

¶330Article I

¶331Each Contracting State agrees, under the conditions established by the present Treaty and each in accordance with the legal formalities in force in its own country, to deliver up, reciprocally, persons found in its territory who have been charged with or convicted of any of the crimes or offenses specified in Article II of the present Treaty and committed within the territorial jurisdiction of the other, or outside thereof under the conditions specified in Article IV of the present Treaty: provided that such surrender shall take place only upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall he found, would justify his commitment for trial if the crime or offense had been there committed.

¶332Article II

¶333Persons shall be delivered up according to the provisions of the present Treaty for prosecution when they have been charged with, or to undergo sentence when they have been convicted of, any of the following crimes or offenses:

¶3341. Murder (including crimes designated as parricide, poisoning and infanticide, when provided for as separate crimes); manslaughter when voluntary.

¶3352. Rape; abortion; carnal knowledge of (or violation of) a girl under the age specified by law in such cases in both the requesting and requested States.

¶3363. Malicious wounding; willful assault resulting in grievous bodily harm.

¶3374. Abduction, detention, deprivation of liberty, or enslavement of women or girls for immoral purposes.

¶3385. Kidnapping or abduction of minors or adults for the purpose of extorting money from them or their families or any other person or persons, or for any other unlawful end.

¶3396. Bigamy.

¶3407. Arson.

¶3418. The malicious and unlawful damaging of railways, trains, vessels, aircraft, bridges, vehicles, and other means of travel or of public or private buildings, or other structures, when the act committed shall endanger human life.

¶3429. Piracy, by the law of the nations; mutiny on board of vessel or an aircraft for the purpose of rebelling against the authority of the Captain or Commander of such vessel or aircraft; or by fraud or violence taking possession of such vessel or aircraft.

¶343*96410. Burglary, defined to be the breaking into or entering either in day or night time, a house, office, or other building of a government, corporation, or private person, with intent to commit a felony therein; housebreaking.

¶34411. Robbery.

¶34512. Forgery or the utterance of forged papers.

¶34613. The forgery, falsification, theft or destruction of the official acts or public records of the government or public authority, including Courts of Justice, or the uttering or fraudulent use of the same.

¶34714. The fabrication or the utterance, circulation or fraudulent use of any of the following objects: counterfeit money, whether coin or paper; counterfeit titles or coupons of public debt, created by national, state, provincial, territorial, local, or municipal governments; counterfeit bank notes or other instruments of public credit; and counterfeit seals, stamps, dies, and marks of State or public administration.

¶34815. The introduction of instruments for the fabrication of counterfeit coins or bank notes or other paper currency as money.

¶34916. Embezzlement by any person or persons hired, salaried or employed, to the detriment of their employers or principals.

¶35017. Larceny.

¶35118. Obtaining money, valuable securities or other property by false pretenses, or by threats of injury.

¶35219. Receiving any money, valuable securities or other property knowing the same to have been unlawfully obtained.

¶35320. Fraud or breach of trust by a bailee, factor, trustee, executor, administrator, guardian, director or officer of any company or corporation or by anyone in any fiduciary capacity.

¶35421. Willful non-support or willful abandonment of a minor or other dependent person when death or serious bodily injury results therefrom.

¶35522. Perjury (including willfully false expert testimony); subornation of perjury.

¶35623. Soliciting, receiving, or offering bribes.

¶35724. The following offenses when committed by public officials: extortion; embezzlement.

¶35825. Crimes or offenses against the bankruptcy laws.

¶35926. Crimes or offenses against the laws of both countries for the suppression of slavery and slave trading.

¶36027. Crimes or offenses against the laws relating to the traffic in, use of, or production or manufacture of, narcotic drugs or cannabis.

¶36128. Crimes or offenses against the laws relating to the illicit manufacture or trafile in substances injurious to health, or poisonous chemicals.

¶36229. Smuggling, defined to be the act of willfully and knowingly violating the customs laws with intent to defraud the revenue by international traffic in merchandise subject to duty.

¶36330 Aiding the escape of a prisoner by force of arms.

¶36431. Use of explosives so as to endanger human life or property.

¶365*96532. Procuration, defined as the procuring or transporting of a woman or girl under age, even with her consent, for immoral purposes, or of a woman or girl over age, by fraud, threats, or compulsion, for such purposes with a view in either case to gratifying the passions of another person; profiting from the prostitution of another.

¶36633. The attempt to commit any of the above crimes or offenses, when such attempt is made a separate offense by the laws of the Contracting States.

¶36734. Participation in any of the above crimes or offenses.

¶368Article III

¶369Except as otherwise provided in the present Treaty, the requested State shall extradite a person accused or convicted of any crime or offense enumerated in Article II only when both of the following conditions exist:

¶3701. The law of the requesting State, in force when the crime or offense was committed, provides a possible penalty of deprivation of liberty for a period of more than one year; and

¶3712. The law in force in the requested State generally provides a possible penalty of deprivation of liberty for a period of more than one year which would be applicable if the crime or offense were committed in the territory of the requested State.

¶372Article IV

¶373When the crime or offense has been committed outside the territorial jurisdiction of the requesting State, the request for extradition need not be honored unless the laws of the requesting State and those of the requested State authorize punishment of such crime or offense in this circumstance.

¶374The words "territorial jurisdiction” as used in this Article and in Article I of the present Treaty mean: territory, including territorial waters, and the airspace therefor, belonging to or under the control of one of the Contracting States; and vessels and aircraft belonging to one of the Contracting States or to a citizen or corporation thereof when such vessel is on the high seas or such aircraft is over the high seas.

¶375Article V

¶376Extradition shall not he granted in any of the following circumstances:

¶3771. When the requested State is competent, according to its laws, to prosecute the person whose surrender is sought for the crime or offense for which that person’s extradition is requested and the requested State intends to exercise its jurisdiction.

¶3782. When the person whose surrender is sought has already been or is at the time of the request being prosecuted in the requested State for the crime or offense for which his extradition is requested.

¶3793. When the legal proceedings or the enforcement of the penalty for the crime or offense committed has become barred by limitation according to the laws of either the requesting State or the requested State.

¶3804. When the person sought would have to appear, in the requesting State, before an extraordinary tribunal or court.

¶381*9665. When the crime or offense for which the person’s extradition is requested is purely military.

¶3826. WTien the crime or offense for which the person’s extradition is requested is of a political character. Nevertheless

a. The allegation by the person sought of political purpose or motive for the request for his extradition will not preclude that person’s surrender if the crime or offense for which his extradition is requested is primarily an infraction of the ordinary penal law. In such case the delivery of the person being extradited will be dependent on an undertaking on the part of the requesting State that the political purpose or motive will not contribute toward making the penalty more severe.

b. Criminal acts which constitute clear manifestations of anarchism or envisage the overthrow of the bases of all political organizations will not be classed as political crimes or offenses.

c. The determination of the character of the crime or offense will fall exclusively to the authorities of the requesting State.

¶383Article VI

¶384When the commission of the crime or offense for which the extradition of the person is sought is punishable by death under the laws of the requesting State and the laws of the requested State do not permit this punishment, the requested State shall not be obligated to grant the extradition unless the requesting State provides assurances satisfactory to the requested State that the death penalty will not be imposed on such person.

¶385Article VII

¶386There is no obligation upon the requested State to grant the extradition of a person who is a national of the requested State, but the executive authority of the requested State shall, subject to the appropriate laws of that State, have the power to surrender a national of that State if, in its discretion, it be deemed proper to do so.

¶387Article VIII

¶388The Contracting States may request, one from the other, through the channel of their respective diplomatic or consular agents, the provisional arrest of a fugitive as well as the seizure of articles relating to the crime or offense.

¶389The request for provisional arrest shall be granted provided that the crime or offense for which the extradition of the fugitive is sought is one for which extradition shall be granted under the present Treaty and provided that the request contains:

¶3901. A statement of the crime or offense of which the fugitive is accused or convicted;

¶3912. A description of the person sought for the purpose of identification;

¶392*9673. A statement of the probable whereabouts of the fugitive, if known; and

¶3934. A declaration that there exist and will be forthcoming the relevant documents required by Article EX of the present Treaty.

¶394If, within a maximum period of 60 days from the date of the provisional arrest of the fugitive in accordance with this Article, the requesting State does not present the formal request for his extradition, duly supported, the person detained will be set at liberty and a new request for his extradition will be accepted only when accompanied by the relevant documents required by Article EX of the present Treaty.

¶395Article IX

¶396The request for extradition shall be made through diplomatic channels or, exceptionally, in the absence of diplomatic agents, it may be made by a consular officer, and shall be supported by the following documents:

¶3971. In the case of a person who has been convicted of the crime or offense for which his extradition is sought: a duly certified or authenticated copy of the final sentence of the competent court.

¶3982. In the case of a person who is merely charged with the crime or offense for which his extradition is sought: a duly certified or authenticated copy of the warrant of arrest or other order of detention issued by the competent authorities of the requesting State, together with the depositions upon which such warrant or order may have been issued and such other evidence or proof as may be deemed competent in the case.

¶399The documents specified in this Article must contain a precise statement of the criminal act of which the person sought is charged or convicted, the place and date of the commission of the criminal act, and they must be accompanied by an authenticated copy of the texts of the applicable laws of the requesting State including the laws relating to the limitation of the legal proceedings or the enforcement of the penalty for the crime or offense for which the extradition of the person is sought, and data or records which will prove the identity of the person sought.

¶400The documents in support of the request for extradition shall be accompanied by a duly certified translation thereof into the language of the requested State.

¶401Article X

¶402“When the extradition of a person has been requested by more than one State, action thereon will be taken as follows:

¶4031. If the requests deal with the same criminal act, preference will be given to the request of the State in whose territory the act was performed.

¶4042. If the requests deal with different criminal acts, preference will be given to the request of the State in whose territory the most serious crime or offense, in the opinion of the requested State, has been committed.

¶4053. If the requests deal with different criminal acts, but which the requested State regards as of equal gravity, the preference will be determined by the priority of the requests.

¶406Article XI

¶407The determination that extradition based upon the request therefor should *968or should not be granted shall be made in accordance with the domestic law of the requested State, and the person whose extradition is desired shall have the right to use such remedies and recourses as are authorized by such law.

¶408Article XII

¶409If at the time the appropriate authorities of the requested State shall consider the documents submitted by the requesting State, as required in Article IX of the present Treaty, in support of its request for the extradition of the person sought, it shall appear that such documents do not constitute evidence sufficient to warrant extradition under the provisions of the present Treaty of the person sought, such person shall be set at liberty unless the requested State or the proper tribunal thereof shall, in conformity with its own laws, order an extension of time for the submission by the requesting State of additional evidence.

¶410Article XIII

¶411Extradition having been granted, the surrendering State shall communicate promptly to the requesting State that the person to be extradited is held at its disposition.

¶412If, within 60 days counting from such communication-except when rendered impossible by force majeure or by some act of the person being extradited or the surrender of the person is deferred pursuant to Articles XIV or XV of the present Treaty-such person has not been delivered up and conveyed out of the jurisdiction of the requested State, the person shall be set at liberty.

¶413Article XIV

¶414When the person whose extradition is requested is being prosecuted or is serving a sentence in the requested State, the surrender of that person under the provisions of the present Treaty shall be deferred until the person is entitled to be set at liberty, on account of the crime or offense for which he is being prosecuted or is serving a sentence, for any of the following reasons: dismissal of the prosecution, acquittal, expiration of the term of the sentence or the term to which such sentence may have been commuted, pardon, parole, or amnesty.

¶415Article XV

¶416When, in the opinion of competent medical authority, duly sworn to, the person whose extradition is requested cannot be transported from the requested State to the requesting State without serious danger to his 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.

¶417Article XVI

¶418The requesting State may send to the requested State one or more duly authorized agents, either to aid in the identification of the person sought or to receive his surrender and to convey him out of the territory of the requested State.

¶419*969Such agents, when in the territory of the requested State, shall be subject to the applicable laws of the requested State, but the expenses which they incur shall be for the account of the State which has sent them.

¶420Article XVII

¶421Expenses related to the transportation of the person extradited shall be paid by the requesting State. The appropriate legal officers of the country in which the extradition proceedings take place shall, by all legal means within their power, assist the officers of the requesting State before the respective judges and magistrates. No pecuniary claim, arising out of the arrest, detention, examination and surrender of fugitives under the terms of the present Treaty, shall be made by the requested State against the requesting State other than as specified in the second paragraph of this Article and other than for the lodging, maintenance, and board of the person being extradited prior to his surrender.

¶422The legal officers, other officers of the requested State, and court stenographers in the requested State who shall, in usual course of their duty, give assistance and who receive no salary or compensation other than specific fees for services performed, shall be entitled to receive from the requesting State the usual payment for such acts or services performed by them in the same manner and to the same amount as though such acts or services had been performed in ordinary criminal proceedings under the laws of the country of which they are officers.

¶423Article XVIII

¶424A person who, after surrender by either of the Contracting States to the other under the terms of the present Treaty, succeeds in escaping from the requesting State and takes refuge in the territory of the State which has surrendered him, or passes through it in transit, will be detained, upon simple diplomatic request, and surrendered anew, without other formalities, to the State to which his extradition was granted.

¶425Article XIX

¶426Transit through the territory of one of the Contracting States of a person in the custody of an agent of the other Contracting State, and surrendered to the latter by a third State, and who is not of the nationality of the country of transit, shall, subject to the provisions of the second paragraph of this Article, be permitted, independently of any judicial formalities, when requested through diplomatic channels and accompanied by the presentation in original or in authenticated copy of the document by which the State of refuge has granted the extradition. In the United States of America, the authority of the Secretary of State of the United States of America shall be first obtained.

¶427The permission provided for in this Article may nevertheless be refused if. the criminal act which has given rise to the extradition does not constitute a crime or offense enumerated in Article II of the present Treaty, or when grave reasons of public order are opposed to the transit.

¶428Article XX

¶429Subject to the rights of third parties, which shall be duly respected:

¶430*9701. All articles, valuables, or documents which relate to the crime or offense and, at the time of the arrest, have been found in the possession of the person sought or otherwise found in the requested State shall be surrendered, with him, to the requesting State.

¶4312. The articles and valuables which may be found in the possession of third parties and which likewise are related to the crime or offense shall also be seized, but may be surrendered only after the rights with regard thereto asserted by such third parties have been determined.

¶432Article XXI

¶433A person extradited by virtue of the present Treaty may not be tried or punished by the requesting State for any crime or offense committed prior to the request for his extradition, other than that which gave rise to the request, nor may he be re-extradited by the requesting State to a third country which claims him, unless the surrendering State also agrees or unless the person extradited, having been set at liberty within the requesting State, remains voluntarily in the requesting State for more than 30 days from the date on which he was released. Upon such release, he shall be informed of the consequences to which his stay in the territory of the requesting State would subject him.

¶434Article XXII

¶435The present Treaty shall be ratified and the ramifications thereof shall be exchanged at Washington, as soon as possible.

¶436The present Treaty shall enter into force one month after the date of exchange of ratification. It may be terminated at any time by either Contracting State giving notice of termination to the other Contracting State, and the termination shall be effective six months after the date of such notice.

¶437In witness whereof the respective Plenipotentiaries have signed the present Treaty and have affixed hereunto their seals.

¶438Done in duplicate, in the English and Portuguese languages, both equally authentic, at Rio de Janeiro, this thirteenth day of January, one thousand nine hundred sixty-one.

¶439[Seal] John. M. Cabot

¶440[Seal] Horacio Lafer

¶441Additional Protocol to the Treaty of Extradition of January 13, 1961, Between the United States of America and the United States of Brazil

¶442The United States of America and the United States of Brazil,

¶443Having concluded at Rio de Janiero, on January 13, 1961, a Treaty of Extradition for the purpose of making more effective the cooperation between the two countries in the repression of crime,

¶444And desiring to make clear that their respective nationals will be subject to extradition only if the constitutional and legal provisions in force in their territories permit it,

¶445*971Have resolved to sign an Additional Protocol to the aforementioned Treaty of Extradition and, to this end, have appointed the following Plenipotentiaries: The president of the United States of America: His Excellency Lincoln Gordon, Ambassador Extraordinary and Plenipotentiary to Brazil, and

¶446The President of the Republic of the United States of Brazil: His Excellency Francisco Clementino de San Tiango [sic] Dantas, Minister of State for External Relations,

¶447Who, having communicated to each other their respective full powers, found to be in good and due form, agree as follows:

¶448Article I

¶449Article VH of the Treaty of Extradition concluded between the countries at Rio de Janeiro, on January 13, 1961, shall be interpreted as follows:

¶450"The Contracting Parties are not obliged by this Treaty to grant extradition of their nationals. However, if the Constitution and laws of the requested State do not prohibit it, its executive authority shall have power to surrender a national if, in its discretion, it he deemed proper to do so.”

¶451Article II

¶452The present Protocol shall enter into force on the same date as the Treaty of Extradition of January 13, 1961, and shall cease to be effective on the date of termination of the Treaty.

¶453In Witness Hereof, the respective Plenipotentiaries have signed the present Additional Protocol and have fixed hereunto their seals.

¶454Done in duplicate, in the English and Portuguese languages, both equally authentic, at Rio de Janeiro, on this eighteenth day of June, one thousand nine hundred sixty-two.

¶455Lincoln Gordon F C de San Tiago [sic] Dantas

¶456[seal]

¶457Whereas the Senate of the United States of America by their resolution of May 16, 1961, two-thirds of the Senators present concurring therein, did advise and consent to the ratification of the treaty and by their resolution of October 22, 1963, two thirds of the Senators present concurring therein, did advise and consent to the ratification of the additional protocol;

¶458Whereas the President of the United States of America ratified the treaty on May 29, 1961 and the additional protocol on October 29, 1963, in pursuance of the advice and consent of the Senate, and the Government of the United States of Brazil has duly ratified the treaty and the additional protocol;

¶459Whereas the respective instruments of ratification of the treaty and the additional protocol were duly exchanged at Washington on November 17, 1964;

¶460And whereas it is provided in Article XXII of the treaty that the treaty shall enter into force one month after the date of exchange of ratification, and it *972is provided in Article II of the additional protocol that the additional protocol shall enter into force on the same date as the treaty;

¶461Now, therefore, be it known that I, Lyndon B. Johnson, President of the United States of America, do hereby proclaim and make public the said treaty and additional protocol, to the end that the same and every article and clause thereof may be observed and fulfilled in good faith on and after December 17, 1964, one month after the day of exchange of instruments of ratification, by the United States of America and by the citizens of the United States of America and all other persons subject to the jurisdiction thereof.

¶462In testimony whereof, I have hereunto set my hand and caused the Seal of the United States of America to be affixed.

¶463Done at the city of Washington this twentieth day of November in the year of our Lord one thousand nine hundred sixty-four and of the independence of the United States of America the one hundred eighty-ninth.

¶464[seal] Lyndon B. Johnson

¶465By the President:

¶466George W. Ball

¶467Acting Secretary of State

¶468Reconsideration denied October 15, 1997.