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Treaty on Extradition between the Republic of India and the Federative Republic of Brazil

Treaty on Extradition between the Republic of India and the Federative Republic of Brazil

Published vide Notification No. G.S.R. 421(E), dated 25th April, 2017

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Ministry of External Affairs

G.S.R. 421(E). – Whereas, the Treaty on Extradition between the Republic of India and the Federative Republic of Brazil was signed at Brasilia on the 16th day of April, 2008 and the Instruments of Ratification of the said Extradition Treaty were exchanged at Brasilia on the 21st day of July, 2015;
And Whereas, the said Extradition Treaty entered into force with effect from the 20th day of August, 2015 in accordance with the provisions of paragraph (1) of Article 25 of the Treaty;
And Whereas, the said Extradition Treaty is specified in the Schedule to this Order;
Now, Therefore, in exercise of the powers conferred by sub-section (1) read with clause (a) of sub-section (3) of section 3 of the Extradition Act, 1962 (34 of 1962), the Central Government hereby directs that the provisions of the said Act, other than the provisions of Chapter III, shall apply to the Federative Republic of Brazil with effect from the date of entry into force of the said Extradition Treaty.
Schedule

Treaty on Extradition between the Republic of India and the Federative Republic of Brazil

The Republic of India and the Federative Republic of Brazil (hereinafter referred to as “the Parties”)
Desiring more effective bilateral cooperation in the suppression of crime by the extradition of offenders;
Recognizing that concrete steps are necessary to combat transnational organized crime and terrorism;
Wishing to make the efforts in combating impunity more effective;
Respecting the principles of sovereignty, non-interference in internal matters of each of the parties and of the norms of international law;
Have agreed as follows:
Article 1

1. Obligation to Extradite.
The Parties shall extradite any person found in their respective territories against whom there is a warrant of arrest, issued by a competent judge, for prosecution in respect of an extraditable crime, or convicted of any extraditable crime in the territory of the other Party, in accordance with the provisions of this Treaty, whether such crime was committed before or after the entry into force of this Treaty.
Article 2

2. Extraditable Crimes.
1. A crime shall be an extraditable crime if it is punishable under the laws of both Parties by deprivation of liberty or imprisonment, for at least a period of one year, or by a more severe penalty.

2. If the extradition is requested for the serving of a sentence imposed in the Requesting Party, the duration of the sentence left to be served shall be of at least for one year.

3. A crime shall be an extraditable crime if it involves an attempt or a conspiracy to commit, aid or abet the commission of or being an accessory before or after the fact to, a crime described in paragraph 1.

4. For the purposes of this Article, a crime shall be an extraditable crime:

(a) Where extradition of a person is sought for a crime against a law relating to taxation, customs duties, foreign exchange, money laundering or other revenue matters. Extradition shall not be refused on the ground that the law of the Requested Party does not impose the same kind of tax or duty or does not contain a tax, duty, custom or exchange regulation of the same kind as the law of the Requesting Party.

(b) Whether or not the laws in the Requesting Party place the crime within the same category of crime or describe the crime by the same terminology.

5. If extradition has been granted for an extraditable crime, it shall also be granted for any other crime specified in the request, even if the latter crime is punishable by less than one year’s deprivation of liberty or imprisonment, provided that all other requirements for extradition are met.

Article 3

3. Composite Crimes.
Extradition may be granted in accordance with this Treaty for an extraditable crime, notwithstanding that the conduct of the person sought occurred wholly or in part in the Requested Party, if under the law of that Party the said conduct and its effects, or its intended effects, taken as a whole, would be regarded as constituting the commission of an extraditable crime in the territory of the Requesting Party.
Article 4

4. Extradition and Prosecution.
1. The request for extradition may be refused by the Requested Party if the person whose extradition is sought may be tried for that crime in the courts of that Party.

2. Where the Requested Party refuses a request for extradition for the reason set out in paragraph 1 of this Article, it shall submit the case to its competent authorities so that prosecution may be considered. Those authorities shall take a decision in the same manner as in the case of any crime of a serious nature under the law of that Party.

3. If the competent authorities decide not to prosecute in such a case, the request for extradition may be reexamined in accordance with this Treaty.

Article 5

5. Extradition of Nationals.
1. Neither Party shall extradite its own nationals. Nationality shall be determined as at the time of the commission of the crime for which extradition is requested.

2. If, pursuant to paragraph 1, the Requested Party does not surrender the person claimed for the sole reason of nationality, it shall, in accordance with its laws and at the request of the Requesting Party, submit the case to its competent authorities in order that proceedings may be taken if they are considered appropriate. If the Requested Party requires additional documents, such documents shall be provided free of charge. The Requesting Party shall be informed of the result of such request through diplomatic channels.

Article 6

6. The Political Crime Exception.
1. Extradition shall not be granted if the crime of which it is requested is a crime of a political character. Simply alleging political motives for committing a crime shall not qualify it as a political crime.

2. For the purpose of this Treaty, the following crimes shall not be regarded as crimes of a political character:

(a) a crime in respect of which the both Parties have the obligation to extradite or submit the case to their competent authorities for prosecution, by reason of a multilateral international treaty/ convention to which both are parties or may become parties in future;

(b) the taking or attempted taking of the life or an assault on the person of a Head of State or Head of Government of one of the Parties, or of member of the Head of State or Head of Government’s family;

(c) murder or culpable homicide/manslaughter;

(d) a crime, involving firearms, explosives, incendiaries, destructive devices or substances, causing death, grievous bodily harm or serious damage to property;

(e) crimes related to terrorism;

(f) kidnapping, abduction, false imprisonment or unlawful detention, including the taking of a hostage;

(g) genocide or crimes against the peace and security of humanity;

(h) acts of seizing boats and aircrafts;

(i) a conspiracy or attempt to commit, or participate in, any of the foregoing crimes.

3. Deeming the crime to be of a political nature shall be in accordance with the law of the Requested Party.

4. Extradition shall not be granted, if the Requested Party considers that, having regard to all the circumstances, including the trivial nature of the crime, or in the interest of justice, it would be unjust or inexpedient to extradite the person.

Article 7

7. Grounds for Refusal.
1. The extradition may be refused:

(a) if the person sought is being prosecuted by the Requested Party for the same crime for which extradition has been requested;

(b) if the person sought has been finally acquitted or convicted and sentenced in the Requested Party or a third State for the same crime for which the extradition if requested;

(c) had he been tried in the territory of the Requested Party for the crime for which his/her extradition is requested, he/she would have been entitled to be discharged under any rule of the national legislation of the Requested Party in relation to previous acquittal or sentence;

(d) when the prosecution has become barred by lapse of time according to the national legislation of the Requesting Party.

2. Extradition may also not be granted:

(a) if the crime in respect of which it is requested is a military crime, which is not a crime under ordinary criminal law of either Party;

(b) when the Requested Party has reasons to believe that the request for extradition has been made with the intention to prosecute or punish the person sought, for reason of race, religion or gender;

(c) if the person whose extradition is sought could be subject to a penalty inadmissible in the Requested Party;

(d) when the person whose extradition is sought has been convicted or is due to be judged in the territory of the Requesting Party by an extraordinary or ad hoc court or tribunal. For the purpose of this Agreement, the expression “extraordinary or ad hoc court or tribunal” shall not be interpreted as referring to a special court which is set up by the regular procedure established by the internal law of each Contracting State.

Article 8

8. Postponement of Extradition.
When the person sought is being proceeded against or is serving a sentence in the Requested Party for a crime other than that for which extradition is requested, the Requested Party shall surrender the person sought or postpone surrender until the conclusion of the proceedings or the service of the whole or any part of the sentence imposed. The Requested Party shall inform the Requesting Party of any postponement.
Article 9

9. Extradition Procedures.
1. The request for extradition under this Treaty shall be made through diplomatic channels.

2. The request shall be accompanied by:

(a) as accurate a description as possible of the person sought, together with any other information which would help to establish his/her identity, nationality and residence;

(b) a statement describing the facts of the crime for which extradition is requested;

(c) the text of the law;

(d) defining the crime; and

(e) prescribing the maximum punishment for that crime.

3. If the request relates to an accused person, it must also be accompanied by a warrant of arrest issued by a judge, magistrate or other competent authority in the territory of the Requesting Party and by such evidence as, according to the law of the Requested Party, would justify his committal for trial if the crime had been committed in the territory of the Requested Party, including evidence that the person requested is the person to whom the warrant of arrest refers.

4. If the request relates to a person already convicted and sentenced, it shall also be accompanied:

(a) by a copy of the judgment or order of conviction and the sentence of the court of a crime of which extradition may be granted under this Treaty;

(b) by a statement showing how much of the sentence has not been carried out.

5. Documents, in support of an extradition request, shall be received and admitted as evidence in extradition proceedings, provided the documents are certified by a judge, magistrate or a competent authority to be the original documents or true copies of such documents and are authenticated by the official seal of the court or by the competent authority.

6. In relation to a convicted person who was not present at his/ her trial, the person shall be treated for the purposes of paragraph (4) of this Article as if he/ she had been accused of the crime of which he/ she was convicted.

7. If the Requested Party considers that the evidence produced or information supplied for the purposes of this Treaty is not sufficient in order to enable a decision to be taken as to the request, additional evidence or information shall be submitted within such time, as the Requested Party shall require.

Article 10

10. Provisional Arrest.
1. In cases of urgency, a Requesting Party may request for the provisional arrest of the person sought pending presentation of the request for extradition. A request for the provisional arrest shall be made through the diplomatic channels. The facilities of the International Crime Police Organization (INTERPOL) may be used to transmit such a request.

2. The application for provisional arrest shall be in writing and shall contain:

(a) a description of the person sought, including information concerning the person’s nationality;

(b) the location of the person sought;

(c) a brief statement of the facts of the case, including the time and place of the commission of the crime;

(d) a description of the laws violated; a statement of the existence of a warrant of arrest, or judgement of conviction against the person sought;

(e) a statement that a request for extradition of the person sought will follow.

3. The person arrested may be set at liberty if the Requesting Party fails to present the request for extradition to the Requested Party, accompanied by the documents specified in Article 9, within 60 (sixty) days from the date of arrest.

Article 11

11. Rule of Specialty.
1. Any person who is surrendered to the Requesting Party under this Treaty shall not be, arrested, imprisoned or tried within the territory of the Requesting Party for or in respect of any crime committed before he was extradited to that territory other than:

(a) the crime in respect of which he was extradited;

(b) any lesser crime disclosed by the facts proved for the purposes of securing his surrender other than a crime in relation to which an order for his extradition could not lawfully be made; or

(c) any other crime in respect of which the Requested Party may consent to his arrest, imprisonment or trial concerning the crime other than a crime in relation to which an order for his extradition could not lawfully be made or would not in fact be made, upon submission of documents listed in Article 9.

2. A person extradited under this Treaty may not be extradited to a third party for a crime committed prior to his/ her extradition unless the Requested Party consents.

3. Paragraphs 1 and 2 of this Article shall not prevent the detention, trial, or punishment of an extradited person or the extradition of that person to a third party, if;

(a) that person leaves the territory of the Requesting Party after extradition and voluntarily returns to it; or

(b) that person does not leave the territory of the Requesting Party within 60 days of the day on which that person is free to leave.

Article 12

12. Supplementary Evidence/Information.
1. If the Requested Party considers at any stage that the information furnished in support of the request for extradition is not sufficient in accordance with the treaty to enable extradition to be granted, that Party may request that supplementary information be furnished within such time as it may specify.

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

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

Article 13

13. Waiver of Extradition.
If the person sought consents to surrender to the Requesting Party, the Requested Party may, subject to its laws, surrender the person as expeditiously as possible, respecting the need for due process.
Article 14

14. Capital Punishment.
If under the law of the Requesting Party the person sought is liable to the death penalty for the crime for which his/ her extradition is requested, but the law of the Requested Party does not provide for the death penalty in a similar case, extradition may be refused unless the Requesting Party gives such assurance as the Requested Party considers sufficient that the death penalty will not be carried out.
Article 15

15. Guarantees for the Extradited Person.
1. The extradited person shall be guaranteed all the rights under the laws of the Requested Party and shall have the right of defense, defense counsel, and if necessary, an interpreter.

2. The period of detention to which the extradited person was subjected in the territory of the Requested Party in consequence of the extradition process shall be calculated as part of the sentence to be served in the territory of the Requesting Party.

Article 16

16. Surrender.
1. The Requested Party shall, as soon as a decision on the request for extradition has been made, communicate that decision to the Requesting Party through diplomatic channels. Reasons shall be given for any complete or partial refusal of a request for extradition.

2. The Requested Party shall surrender the person sought to the competent authorities of the Requesting Party at a location in the territory of the Requested Party as acceptable to the both parties.

3. The Requesting Party shall remove the person sought from the territory of the Requested Party within 60 days from the extradition order and if the person sought is not removed within that period, the Requested Party may set that person at liberty and may refuse extradition for the same crime.

4. In the case of unforeseen events or of serious illness duly certified by the competent authority, which may impede or be an obstacle to the surrender of the person to be extradited, the other Party shall be informed of the circumstances before the expiry of the period prescribed under the Treaty, and a new date for the surrender may be mutually agreed upon.

Article 17

17. Seizure and Surrender of Property.
1. To the extent permitted under its national legislation, the Requested Party may seize and surrender to the Requesting Party, all articles, documents, and evidence connected with the crime in respect of which extradition is granted. The items mentioned in this Article may be surrendered even when the Extradition cannot be effected due to the death, disappearance or escape of the person sought.

2. The Requested Party may condition the surrender the property upon satisfactory assurances from the Requesting Party that the property will be returned to the Requested Party as soon as possible. The Requested Party may also defer the surrender of such property if it is needed as evidence in the Requested Party.

3. The rights of third party in such property shall be duly respected.

Article 18

18. Transit.
1. Each Party may authorize transportation through its territory of a person surrendered to the other Party by a third State. A request for transit shall be made through the diplomatic channels. The facilities of Interpol may be used to transmit such a request. It shall contain a description of the person being transported and a brief statement of the facts of the case. A person in transit may be detained in custody during the period of transit.

2. No authorization is required where air transportation is used and no landing is scheduled in the territory of either Party. If an unscheduled landing occurs in the territory of one Party, the other Party may require the request for transit to be submitted as in paragraph 1 of this Article. That Party shall detain the person to be transported until the request for transit is received and the transit is effected, so long as the request is received within 4 (four) days i.e. (96 hours) of the unscheduled landing.

Article 19

19. Mutual Legal Assistance in Extradition.
Either Party shall, to the extent permitted by its law, afford the other the widest measure of mutual assistance in criminal matters in connection with the crime for which extradition has been requested.
Article 20

20. Documents and Expenses.
1. The extradition request and the documents that accompany it shall be translated into the language of the Requested Party.

2. Expenses incurred in the territory of the Requested Party on account of the execution of the request for extradition shall be borne by that Party. The expenses on account of the transfer of the person to be extradited shall be borne by the Requesting Party.

3. The Requested Party shall facilitate all necessary arrangements, with respect to the representation of the Requesting Party, in any proceedings arising out of the request.

Article 21

21. Central Authorities.
For the purpose of this Treaty, the Parties shall communicate through their Central Authorities. The Central Authority for the Republic of India shall be the Ministry of External Affairs and for the Federative Republic of Brazil, it shall be the Ministry of Justice.
Article 22

22. Return of Extradited Person.
An extradited person who escapes from the territory of the Requesting Party and returns to the territory of the Requested Party shall be detained by means of a simple request made by the Central Authority or through diplomatic channels and shall be surrendered once more without further formalities.
Article 23

23. Obligations under International Conventions/ Treaties.
This Treaty shall not affect the rights and obligations of the Parties arising from International Conventions/Treaties to which they are party.
Article 24

24. Dispute Settlement.
Any dispute arising out of the interpretation of this Treaty shall be settled by means of mutual consultations and negotiations.
Article 25

25. Entry into Force and Termination.
1. This Treaty is subject to ratification by both sides and the instruments of ratification shall be exchanged as soon as possible. It shall enter into force 30 days after the date of the exchange of the said instruments.

2. Either Party may terminate this Treaty by giving notice in writing through diplomatic channels at any time. Termination shall take effect six (6) months after the date on which the notice is given.

3. The pending requests as on the date of termination shall be processed in accordance with the provisions of this Treaty.

In Witness Whereof, the undersigned, being duly authorized by their respective Governments, have signed this Treaty.
Done at this 16th day of April, Two Thousand and Eight in two originals, each in the Hindi, Portuguese and English language, all texts being equally authentic. In case of any divergence of interpretation, the English text shall prevail.
On Behalf of the

On Behalf of the

Republic of India

Federative Republic of Brazil

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