Brazilian Justice System: New Case

[SageDad]

Even if he were an adult Brazil wouldn't do anything about crimes committed in the United States...  Brazil may not do anything about it but any other country they go to can place them under arrest and ship them off to the US to face charges.

Wrong. If a brazilian citizen commit crime in another country, and then enter in Brasil territory, ther person can be criminaly charged and, if convicted, jailed, according to the brazilian criminal law. Or jailed before the final decision, depending on the crime and the circunstances.

Sounds great in theory.  How many times has that ever actually happened?  Counting on Brazilian justice to adjudicate crimes committed in foreign countries is like watching the grass grow -- actually that principle would seem to apply to just about anything and everything in Brazilian courts.  My point was, it doesn't matter what Brazilian criminal courts will or will not do.  Interpol Red Notices for Brazilian nationals are not dependent upon Brazilian oversight or approval.  Brazilian citizens traveling internationally can be arrested and extradited in any country that has an extradition treaty with the US.

[André Felipe]

Sounds great in theory.  How many times has that ever actually happened?  Counting on Brazilian justice to adjudicate crimes committed in foreign countries is like watching the grass grow -- actually that principle would seem to apply to just about anything and everything in Brazilian courts.  My point was, it doesn't matter what Brazilian criminal courts will or will not do.  Interpol Red Notices for Brazilian nationals are not dependent upon Brazilian oversight or approval.  Brazilian citizens traveling internationally can be arrested and extradited in any country that has an extradition treaty with the US.

In 2003, a brazilian citizen robbed and murdered two people in Japan, and then flew to Brazil. The japanese government requested the Prosecutor Office of the State of São Paulo to initiate a criminal charge against the man. Where is he now? Jailed. All the lower instances have denied a habeas corpus for him, and recently the Supreme Court also denied (6/7/2010). He is facing a criminal charge of robbery followed by murderer.

http://www.conjur.com.br/2010-jun-07/supremo-nega-habeas-corpus-brasileiro-acusado-latrocinio-japao

Carlos, my country has severe problems in many aspects, like social problems and slowness of the Judiciary. I am not bothered when people mentions and criticized these facts, as they simply are talking about something that is true. What makes me very upset is when someone makes false statements about my country without verifying or bothering if it's true, and it sounds to me as purely prejudice towards to my country, my people, myself.

Not extraditing nationals is a sovereign decision made by some countries, like France and Italy (just to mention "First World countries") and Brazil, and it deserves, at least, respect. A brazilian national can not be extradited. In other matters, as Brazil signed the Treaty of Rome (International Criminal Court), a brazilian national can be delivered to this Court, in Hague, to face crimes against humanity or other kinds of crime, a Treaty that US has decided not to join with, as a sovereign nation it is.

[SageDad]

No offense intended, and towards you least of all, but holding criminal proceedings in foreign countries is a failing endeavor and a concept I am very familiar with.  Completely leaving aside national bias, such prosecutions place an enormous burden on domestic prosecutors and it is no stretch to say that, even in the best circumstances, a trial cannot be as effectively heard or adjudicated in a country foreign to where the crime was committed, the victims are located and the evidence is most readily found. 

Mexico also claims it will prosecute Mexican citizens under Article IV of our Extradition Treaty with them when they refuse extradition and the result is almost always that the trial never moves forward, the defendant is acquitted, or the sentence is a very small fraction of what a conviction would have led to in a US court.  Your anecdotal news story aside (and Mexico also has exceptional cases where justice works) it's hardly unfair to expect that, even in Brazil, such procedures are a very poor substitute for a functioning extradition agreement.  More problematic is the fact that, if a foreign national is found non-guilty in a foreign prosecution of a US criminal case, the criminal in question can, in many cases, then come back to the United States, or at least travel internationally, and be immune from further US prosecution under "double jeopardy" laws.

I don't disagree that Brazil, like the US, is a sovereign nation that has the rights to make any laws it chooses to (just like Darfur), but it is the substance and effectiveness of those laws that deserves respect (or not as the case may be.)  All systems of justice, sovereign or not, are not equally worthy of respect.

..and Italy actually does have an extradition treaty with the US that allows extradition of Italian nationals (and vice versa.)

[Jara]

This is an unfortunate case.  And unfortunately, Bob is correct.  Unless the Brazilian Govm't drop the illegal entry charge, than Samantha is there for a long haul.  This is a Federal offense, even if she is a minor child.  It would be up to her attorney in Brazil to put a case together outlining the circumstanses that lead to the offense.  But that would require a Trial and a formal process. 

Unfortunately, the US Government cannot assist in this case other than to attempt negociations with the local/state authorities. 

As true, the local authorities SHOULD NOT have released Samantha to the care of a non-custodial, but rather to the care of childrens services.  Mom and/or Dad can go to Brazil in the meantime, establish a residense and request Samantha be eschewn to their custdody (most likely granted) but will be banned from taking Samantha out of Brazil, and or request Samantha be plased in a "safe" mutual envirnment involving the Social Services.[/b]Very, very sad.  Very very painful for Mom and Dad.  But Brazil is in thier Federal authority to retain Samantha through the end of the Trial and thereafter depending on outcome. 

God bless the family. 
Jara and Theo

[Jara]

P.s.  From a legal perspective, Brazil will not drop the charges.  It would  set a Federal president.  99.99999% this will go to Trial in Brazil.

Brazil is not at fault at this.  In perspective, if Samantha were "Sam" from Pakistan under the same circumstances, "Sam" would be in jail here in the USA awaiting Trial, or G-Bay. 

Even as a US Citizen, if you commit a crime in another country, or State, you are subject to that County or State Law.  If you commit a Federal Crime in another Country, you are subject to their Federal Law (not ours).  Being a US Citizen does not give a passport, even to a minor, to commit a crime.  They are subject to due process of Federal/Country/State Law.

We ask the same here in the USA of Foreign Citizens.  It is a double standard to not respect the same as we ask and do. 

[André Felipe]

No offense intended, and towards you least of all, but holding criminal proceedings in foreign countries is a failing endeavor and a concept I am very familiar with.  Completely leaving aside national bias, such prosecutions place an enormous burden on domestic prosecutors and it is no stretch to say that, even in the best circumstances, a trial cannot be as effectively heard or adjudicated in a country foreign to where the crime was committed, the victims are located and the evidence is most readily found. 

Mexico also claims it will prosecute Mexican citizens under Article IV of our Extradition Treaty with them when they refuse extradition and the result is almost always that the trial never moves forward, the defendant is acquitted, or the sentence is a very small fraction of what a conviction would have led to in a US court.  Your anecdotal news story aside (and Mexico also has exceptional cases where justice works) it's hardly unfair to expect that, even in Brazil, such procedures are a very poor substitute for a functioning extradition agreement.  More problematic is the fact that, if a foreign national is found non-guilty in a foreign prosecution of a US criminal case, the criminal in question can, in many cases, then come back to the United States, or at least travel internationally, and be immune from further US prosecution under "double jeopardy" laws.

I don't disagree that Brazil, like the US, is a sovereign nation that has the rights to make any laws it chooses to (just like Darfur), but it is the substance and effectiveness of those laws that deserves respect (or not as the case may be.)  All systems of justice, sovereign or not, are not equally worthy of respect.

..and Italy actually does have an extradition treaty with the US that allows extradition of Italian nationals (and vice versa.)

I've already said in other occasions that I am not particulary a fan of the choice the policitians of my country took about extradition when they were elaborating the constitution, and agreeing or disagreeing with it is really not the point here. The issue is that you are making prejudgment as if all these cases were fated to impunity, which I don't need to say it's wrong (and disrespectful).

You seems to always consider that the person that is being accused is always guilty and that the US Courts would be the best ones to make the judgement.
Imagine a situation where an american citizen is being accused of committing a crime in Brasil, before returning to US. Do you trust on the brazilian judiciary? Do you believe the police will do a fine job on investigating and will not be moved by an anti-american sentiment to put the "gringo" at the jail, whether he is innocent or not? Do you think the Courts here are being fair with those two american pilots of the Legacy jet envolved in an airplane crash above the Amazon, knowing that the entire brazilian press published that they were "playing" with the jet before the accident, or wrongfuly turned off an important security equipment?

Peharps, being judged by US rules is a better guarantee of fairness than in another country. The same suspicion you or others might have to a foreigner Court also foreigners can have in regard to US justice system. There are many ways to solve these doubts, and one of them is simply denying extradition of nationals, and if this country wants to maintain a good relationship with the others, it will have to ensure there will be a way to make this person pay for the crime, IF he's guilty.

Itally once denied the extradiction of a corrupted banker, who has brazilian and italian citizenships, under the argument it can not extradite nationals. I believed it was an imposition from the italian Constitution, as I thought if it was a matter of international treaty, brazil would enter in an agreement with Italy, and that did not happen. The guy decided to make a trip to Monaco and was arrested by the interpol.

[Bob D'Amico]

Had a "garbled" telephone conversation with Samantha's mother, Joann, a few minutes ago. The connection kept cutting in and out so this information may not be 100% correct. Joann was at the airport - Samantha either is returning to the US or Joann is going to get her in Brazil. She said that Samantha is "on US soil now." That could mean her plane has landed or Samantha is at the US Embassy or Consulate in Brazil.

Either way, the Brazilian judiciary worked expeditiously on Friday with a consular officer from the US Embassy to repatriate Samantha. She is safe!


For those who were wondering why her parents did not fly to Brazil to get Samantha, here is the answer from Joann:

We have been discouraged this whole time from going to Brazil for fear she will run and have been advised to wait til authorities have her in custody.

[KarlHindle]

Sounds like job done...keep us posted

[Jara]

Excellent news!.  I'm very curious to know the outcome and details.  In the meantime, Safe and having Mom there is a GREAT thing.

[André Felipe]

Either way, the Brazilian judiciary worked expeditiously on Friday with a consular officer from the US Embassy to repatriate Samantha. She is safe!

Good. I haven't heard any news about the envolvement of the Judiciary in this case, I believe this issue just envolved the local police and authorities and consular officials.

[SageDad]

I've already said in other occasions that I am not particulary a fan of the choice the policitians of my country took about extradition when they were elaborating the constitution, and agreeing or disagreeing with it is really not the point here. The issue is that you are making prejudgment as if all these cases were fated to impunity, which I don't need to say it's wrong (and disrespectful).

You seems to always consider that the person that is being accused is always guilty and that the US Courts would be the best ones to make the judgement.
Imagine a situation where an american citizen is being accused of committing a crime in Brasil, before returning to US. Do you trust on the brazilian judiciary? Do you believe the police will do a fine job on investigating and will not be moved by an anti-american sentiment to put the "gringo" at the jail, whether he is innocent or not? Do you think the Courts here are being fair with those two american pilots of the Legacy jet envolved in an airplane crash above the Amazon, knowing that the entire brazilian press published that they were "playing" with the jet before the accident, or wrongfuly turned off an important security equipment?

Peharps, being judged by US rules is a better guarantee of fairness than in another country. The same suspicion you or others might have to a foreigner Court also foreigners can have in regard to US justice system. There are many ways to solve these doubts, and one of them is simply denying extradition of nationals, and if this country wants to maintain a good relationship with the others, it will have to ensure there will be a way to make this person pay for the crime, IF he's guilty.

Itally once denied the extradiction of a corrupted banker, who has brazilian and italian citizenships, under the argument it can not extradite nationals. I believed it was an imposition from the italian Constitution, as I thought if it was a matter of international treaty, brazil would enter in an agreement with Italy, and that did not happen. The guy decided to make a trip to Monaco and was arrested by the interpol.

It's not at at all disrespectful to say that deciding cases in foreign countries is disrepectful.  It's calling a spade or spade (or a turd or a turd, as it were.)  It is not a US centric or nationalistic principle to say that trials should should be heard in the jurisdiction within which they occur as the authorities in that jurisdiction are the most competent to hear the case.  That is an old and well established principle, and is the subject of substantial scholarship particularly in international law generally, conflict of laws specifically and the doctrine of forum non conveniens.   To take an example more germane to this forum, the Hague Abduction Convention makes extensive of use of exactly this concept, to wit, from the Elisa Perez Explanatory Report on the Convention:

On this matter, the Convention rests implicitly upon the principle that any debate on the merits of the question, i.e. of custody rights, should take place before the competent authorities in the State where the child had its habitual residence prior to its removal

If decisions could be made in an equally just fashion in any country the Hague Abduction Convention, and indeed most international law, would be entirely unnecessary.  The courts of the country children were abducted to could just hear the custody case and be done with it.  Incidentally, that was exactly the situation with the 1965 Hague Convention on children that allowed foreign courts to determine the child's "best interests" (amongst other problems) with the end result being that foreign courts always gave custody to the abductors.

As far as American's committing crimes in Brazil, unless there are compelling reasons to hear the case somewhere else, the rebuttable presumption should always be that the jurisdiction within which the crime occurs is the one most competent to adjudicate the case.  Simply categorically denying the extradition of nationals to avoid unfair biases in foreign courts throws the baby out with the bathwater.  I'm not aware of any extradition treaty that forces countries to honor every extradition request.  Extraditions are handled on a case by case basis -- something even Brazil does with foreign fugitives seeking asylum in Brazil.

As far as Italy refusing to extradite it's own nationals to Brazil, why should they if Brazil will not reciprocate?  There's no such thing as a free lunch.

[André Felipe]

I've already said in other occasions that I am not particulary a fan of the choice the policitians of my country took about extradition when they were elaborating the constitution, and agreeing or disagreeing with it is really not the point here. The issue is that you are making prejudgment as if all these cases were fated to impunity, which I don't need to say it's wrong (and disrespectful).

Carlos, I don't know if it's the language barrier or what. I really don't bother what are your opinions and I do not intend make you change your position in regard to extradition of brazilian citizens, which you can see from previous posts and on another thread that I am also against the prohibition of extraditing brazilian nationals. A criminal should be punished according to the laws of the land he choosed to break, except if it means to have the head crushed by an elephant's foot, or being killed by throwing rocks, and others agressions to human rights.

The brazilian constitution defines it differently, and only the making of a new Constitution can change it.

Now, when you make statements that, because of that rule, Brazil won't make anything in regard to brazilian citizens that committed crimes overseas, without any basis, as if impunity and injustice would always prevail, you are wrong, and it sounds disrespect to me.

Even if he were an adult Brazil wouldn't do anything about crimes committed in the United States.  That doesn't prevent US authorities from filing criminal charges against him and his family and having Interpol warrants issued.  Brazil may not do anything about it but any other country they go to can place them under arrest and ship them off to the US to face charges.

Sounds great in theory.  How many times has that ever actually happened?  Counting on Brazilian justice to adjudicate crimes committed in foreign countries is like watching the grass grow -- actually that principle would seem to apply to just about anything and everything in Brazilian courts. 

[Bob D'Amico]

Sounds great in theory.  How many times has that ever actually happened?  Counting on Brazilian justice to adjudicate crimes committed in foreign countries is like watching the grass grow -- actually that principle would seem to apply to just about anything and everything in Brazilian courts. My point was, it doesn't matter what Brazilian criminal courts will or will not do.  Interpol Red Notices for Brazilian nationals are not dependent upon Brazilian oversight or approval.  Brazilian citizens traveling internationally can be arrested and extradited in any country that has an extradition treaty with the US.

This debate is not constructive or even informative - a key point in any debate is factual data or evidence. The above quote, especially the sentence in bold text, fails to meet the basic standards of debate simply because it is not based on a verifiable fact. The standard response should be, provide the statistics and their citation.

I think we can agree that no system of justice is perfect, the U.S. system is not superior to others and far from perfect. However it is, like Brazil based on a written constitution which is the law of the land.  It is not the privilege of individual judges to re-write or re-interpret a constitution (even though many US judges have and continue to try it).

Andre, our sincere thanks for the assistance and advice you privately provided for Joann and her family. I know that your information was of great relief and help.

[SageDad]

Sounds great in theory.  How many times has that ever actually happened?  Counting on Brazilian justice to adjudicate crimes committed in foreign countries is like watching the grass grow -- actually that principle would seem to apply to just about anything and everything in Brazilian courts. My point was, it doesn't matter what Brazilian criminal courts will or will not do.  Interpol Red Notices for Brazilian nationals are not dependent upon Brazilian oversight or approval.  Brazilian citizens traveling internationally can be arrested and extradited in any country that has an extradition treaty with the US.

This debate is not constructive or even informative - a key point in any debate is factual data or evidence. The above quote, especially the sentence in bold text, fails to meet the basic standards of debate simply because it is not based on a verifiable fact. The standard response should be, provide the statistics and their citation.

I think we can agree that no system of justice is perfect, the U.S. system is not superior to others and far from perfect. However it is, like Brazil based on a written constitution which is the law of the land.  It is not the privilege of individual judges to re-write or re-interpret a constitution (even though many US judges have and continue to try it).

Andre, our sincere thanks for the assistance and advice you privately provided for Joann and her family. I know that your information was of great relief and help.

The very existence of this forum, the case that it arose in response to and the many parents here, like Tim, who wait years before the judicial cases of their abducted children take even the smallest step forward is prima facie evidence for the statement in bold.  Whether you feel it is constructive or not is what fails to meet any basic standard of debate, unless you adhere to some postmodern subjective criteria where all truth is relative.  A criteria that would seem to be supported by your hand waving about no justice system being perfect.  Imperfection is reality and a lack of perfection doesn't make all systems equally just.  Aside from incorrectly implying that I am somehow defending the US judiciary or justice system, what both you and Andrei seem to have taken as an axiomatic truth is the idea that international law is the sole concern of the judiciary. Brazil, as a civil law country, was under no obligation to implement the Hague Convention in its courts as textual statutes. Many countries create implementing legislation that expands and builds upon the treaty taking into account domestic norms, legal idioms and practical considerations as well as ensuring that the spirit within which the treaty was enacted is correctly translated into domestic legislation (something required by the Vienna Convention on the Law of Treaties and customary international law norms.)  At the international level each country is best considered a black box.  Invoking domestic legislation and societal norms always fails to meet any objectively just criteria.  Although Brazil AND the US both do so on a regular basis the actions of one do not justify those of the other.  Everybody's doing it is just bad bandwagon logic.

[liesl78]

Samantha is indeed home. It's been reported on G1 that she was accompanied by 2 US consuls and a family member

http://g1.globo.com/minas-gerais/noticia/2010/09/jovem-que-desembarcou-em-minas-com-passaporte-falso-volta-aos-eua.html