How to Stop Extradition from Brazil: Grounds for Refusal, Appeals and Deadlines
In Brazil, the Supremo Tribunal Federal (STF, Supreme Federal Court) in Brasília decides whether a foreign state’s extradition request is legally admissible. Article 90 of Law 13,445/2017 excludes an ordinary appeal from that decision. The written defence is due within 10 days after the STF-ordered interrogation, not after an INTERPOL alert.
Different stages have different clocks. Obtain the STF case number, the full foreign request, proof of diplomatic notifications and the treaty relied on. This page covers objections and remedies; the overall sequence is in the Brazil extradition guide.
Which authority can decide each challenge?
Constitution Article 102(I)(g) gives the STF original jurisdiction over incoming extradition requests. Raise identity, document defects, prescription and statutory refusal grounds in the STF case. A custody application is made there under Article 86. Refugee status follows the separate CONARE process.
Judicial authorisation and handover are distinct. The STF must refuse an unlawful request, but authorisation does not necessarily compel the President to surrender the person. In Ext 1.085 (Battisti), the STF authorised extradition; in Rcl 11.243 (8 June 2011), it did not entertain Italy’s complaint against the executive’s separate refusal to surrender him. These decisions do not give every individual a right to demand executive refusal; the actual treaty and facts matter.
Which grounds require refusal under Articles 82–83?
Article 82 of Brazil’s Migration Law lists circumstances in which extradition “shall not be granted.” Article 83 also requires a jurisdictional link to the requesting state and an investigation, prosecution or custodial sentence there. Compare the alleged conduct, not merely the offence label.
| Ground | Rule and effect | Evidence to collect |
|---|---|---|
| Brazilian nationality | Art. 82(I) and Constitution Art. 5(LI): a Brazilian by birth cannot be extradited. Naturalised citizens fall within constitutional exceptions for pre-naturalisation offences or proven involvement in illicit drug trafficking. | Birth/nationality records, naturalisation date and conduct dates. |
| No double criminality | Art. 82(II): conduct must be criminal in both states; labels need not match. | Both criminal provisions matched to the alleged acts. |
| Brazilian jurisdiction | Art. 82(III): refusal where Brazil is competent to try the offence. | Locations, jurisdiction rules and Brazilian proceedings. |
| Penalty below threshold | Art. 82(IV): Brazilian law must not prescribe imprisonment below two years; a treaty may frame its threshold differently. | Brazilian penalty provision and treaty clause. |
| Same facts in Brazil | Art. 82(V): a Brazilian prosecution, conviction or acquittal for the same facts bars extradition. | Certified case records and fact-by-fact comparison. |
| Prescription | Art. 82(VI): a time bar under Brazilian or requesting-state law bars extradition. | Chronology and both states’ limitation, interruption and suspension rules. |
| Political offence or offence of opinion | Art. 82(VII), §§1–4; Constitution Art. 5(LII): political character is assessed by the STF; a political motive alone is not decisive. Serious ordinary and international crimes may be excluded. | Indictment, conduct, context and classification evidence. |
| Exceptional tribunal | Art. 82(VIII): no extradition to face an exceptional or ad hoc tribunal. | Proposed court’s jurisdiction and safeguards. |
| Refugee or territorial asylum | Art. 82(IX): protection applies within the statute’s scope. Refugee Law Arts 33–35 require a link between protection facts and the extradition request. | CONARE record, persecution evidence and fact comparison. |
For each ground, identify the exact statutory limb and show why it applies to the request. General unfairness or a bare claim of innocence is not enough.
Can a treaty change the grounds or deadlines?
Brazilian law and the applicable bilateral or regional treaty govern the request; where no treaty exists, a diplomatic promise of reciprocity may be considered. Treaty terms can change thresholds, deadlines and surrender conditions, so identify the applicable instrument before calculating any clock.
Decree 4,975/2004 promulgates the MERCOSUR agreement among Argentina, Brazil, Paraguay and Uruguay; Decree 5,867/2006 covers Bolivia and Chile under a separate agreement with materially matching rules. Article 2 requires double criminality and a maximum custodial penalty of at least two years in both states; an enforcement request requires at least six months of the sentence to remain. Articles 6 and 10 exclude purely military offences and conduct committed before age 18. Article 5 treats political offences separately; political motive alone does not decide classification.
Under Article 21 of either agreement, the requesting state has 45 calendar days from receipt of diplomatic notice of document defects, with a possible reasoned extension of 20 calendar days. Article 22(4) requires release if the person is not collected within 30 calendar days from notification, subject to the treaty exception for force majeure or serious illness. Article 29(4)–(5) of each agreement also sets a separate 40-calendar-day provisional-arrest clock, from notice of arrest to the requesting state to formalise the request with Brazil’s Ministry of Foreign Affairs. If missed, release is required; after release under this clause, a new provisional arrest requires a formal extradition request. These treaty clocks differ from the general statutory 60-day periods. For other states, check the treaty, parties, reservations and exact clause.
Portugal is governed by a separate bilateral Treaty of Extradition signed on 7 May 1991 and promulgated in Brazil by Decree 1,325/1994. Under Article II, an offence sought for prosecution must carry a maximum custodial sentence of more than one year; for enforcement of a sentence, more than nine months must remain to be served. Article XX has a separate provisional-detention rule: release is required if the formal request is not received within 60 days after detention. Article XVI separately governs handover after authorisation: the person must be collected within a reasonable period set by Brazil, not exceeding 60 days, subject to the treaty’s exceptions. Do not apply the MERCOSUR 40-day provisional-arrest or 30-day collection periods to a Portuguese request. Check the treaty and the official notice and collection dates in the actual STF file.
Which clock applies, and what starts it?
| Event | Deadline and trigger | Next step |
|---|---|---|
| Written defence, Art. 91(1) | 10 days from the STF-ordered interrogation. | File identity, document-form and legality objections with evidence. |
| Formal request after provisional arrest, Art. 84(4)–(5) | Normally 60 days from notice of arrest to the requesting state, unless a treaty says otherwise. | Verify the notification and full-request dates; seek release if late. |
| MERCOSUR provisional arrest, Art. 29(4)–(5) | 40 calendar days from notice of arrest to the requesting state to formalise the request with Brazil’s Ministry of Foreign Affairs. | Seek release if missed; after release, a new provisional arrest requires a formal extradition request. |
| Court-ordered evidence step, Art. 91(2)–(4) | The MPF has a non-extendable 60 days from notice to the requesting state’s diplomatic mission, where the STF orders further inquiry on the MPF’s request. | Confirm this specific procedure; it is not a general foreign-state deadline. |
| Refugee refusal appeal, Law 9,474/1997 Art. 29 | 15 days from receipt of refusal notice. | Appeal to the Minister of Justice and separately notify the STF of the factual link. |
| Collection after authorisation, Arts 92–93 | Normally 60 days from diplomatic communication after the executive authorises delivery, unless a treaty changes it. | Check authorisation and communication dates; seek release if expired. |
| MERCOSUR document cure, Art. 21 | 45 calendar days from notice of defects; a reasoned extra 20 may be requested. | Check the notice, extension and correction dates. |
| MERCOSUR collection, Art. 22(4) | 30 calendar days from notification, subject to the treaty exception. | Apply the treaty, not the default 60-day rule. |
| Portugal treaty, provisional detention, Art. XX | 60 days from detention. | Confirm the detention date and whether the formal request was received; seek release if the treaty deadline expired. |
| Portugal treaty, collection after authorisation, Art. XVI | Reasonable period fixed by Brazil, capped at 60 days; treaty exceptions apply. | Check the official delivery notice, the period fixed by Brazil and any treaty extension. |
These clocks are not interchangeable. Article 84 concerns the formal request after provisional arrest; Article 91 concerns defence and court-ordered evidence; Articles 92–93 concern collection after executive authorisation. Article 84(6) permits provisional detention until the court’s final ruling on legality, so the first 60 days is not a universal detention maximum.
Can detention be changed before the case ends?
In Ext 1.652, the STF First Panel on 19 October 2021 required a 30-year maximum for conduct investigated before 24 December 2019. That is a case-specific ruling, not a universal rule for every foreign sentence or later conduct. In a separate single-judge order on 18 April 2023 in the same Chilean matter, the STF refused alternative custody measures while handover was pending. Article 86 relief is therefore discretionary; check also for an independent Brazilian warrant or sentence.
Does a refugee application suspend extradition?
Refugee Law 9,474/1997, Article 34 suspends a pending administrative or judicial extradition process until a final refugee decision if the request is based on the same facts underlying the protection claim. Article 35 requires notice to the authority handling extradition; Article 33 bars extradition based on facts supporting recognised status. An unrelated claim does not automatically bar surrender or require release.
The National Committee for Refugees (CONARE) decides status. A refusal may be appealed to the Minister of Justice within 15 days after receipt of notice (Art. 29); the Minister’s decision is not further appealable under Art. 31. Submit persecution evidence and tell the STF which facts overlap with the foreign case. Ext 1.085 shows that the STF examines the factual link and political/ordinary-crime classification; labels alone do not decide the issue.
What safeguards remain after the STF authorises extradition?
Article 96 requires undertakings before handover. In particular, Article 96(III) expressly requires a commitment to commute corporal, life or death penalties to a custodial term whose maximum time to be served is 30 years. In Ext 1.652, the STF First Panel also required a 30-year maximum for conduct investigated before 24 December 2019; that was a case-specific ruling, not a universal answer for every foreign sentence or later conduct. Do not assume that the Penal Code’s separate general maximum automatically determines the extradition undertaking in every case. Counsel should check the precise sentence, dates of conduct, applicable treaty and current STF authority.
Article 95 generally postpones handover while the person is being prosecuted or serving a custodial sentence in Brazil, subject to statutory exceptions. It also postpones delivery where serious illness threatens life and an official medical report proves it. These are execution limits, not necessarily final refusal grounds. The STF’s refusal prevents surrender; after authorisation, the executive has a separate role and may decide not to deliver, but the person cannot assume a right to compel that outcome. Check the actual treaty and decision.
Is there an appeal, habeas corpus or an international urgent measure?
Article 90 excludes an ordinary appeal from the STF decision. Counsel should immediately check the operative order and current STF rules for any narrow corrective motion; availability and deadline are case-specific, and no filing should be assumed to suspend handover.
Habeas corpus may address a concrete unlawful restraint on liberty, but is not a substitute appeal on extradition merits. Jurisdiction and admissibility depend on the challenged act; filing alone does not stay delivery.
The Inter-American Commission may consider precautionary measures under Rule 25 in a serious, urgent risk of irreparable harm. Eligibility is case-specific; this is a separate international procedure, not an ordinary appeal, and filing does not automatically suspend surrender.
The INTERPOL Commission for the Control of Files (CCF) is a separate data-challenge route. A Red Notice is not an international arrest warrant, and changing INTERPOL data does not automatically end the STF case; see how to check a Red Notice. Nor can extradition barred by Brazilian law simply be relabelled as deportation: Migration Law Article 53 prohibits deportation where it would amount to impermissible extradition. See extradition versus deportation.
What should the defence prepare, and what mistakes should it avoid?
Identify the posture first: provisional arrest only, a formal request before the STF, authorisation, or an executive communication setting collection. Obtain the STF case number, foreign warrant and request, applicable treaty, and diplomatic-notice dates. Record the interrogation date immediately.
Use primary evidence: nationality records; foreign charges or judgment and statutory texts; a dated prescription calculation under both laws; Brazilian records for the same facts; material about an exceptional court; or a documented refugee chronology. For Article 95, obtain an official medical report or Brazilian case/sentence records. For Articles 96 and 92–93, obtain the written undertakings, executive authorisation and communication dates.
Avoid treating a Red Notice as a warrant; importing another country’s appeal deadline; counting 10 days from the alert rather than interrogation; treating all 60-day periods as detention limits; overlooking the 30-day MERCOSUR collection rule; relying on political motive without analysing the conduct; assuming any refugee filing blocks extradition; or signing a voluntary-surrender declaration without independent advice. Article 87 requires an express declaration with a lawyer and a warning about the right to judicial extradition proceedings; the STF still decides the request.
Hypothetical: a Chilean national is arrested in São Paulo and the family says the foreign case is too old. Counsel should identify the Chile–MERCOSUR agreement, confirm when Chile was notified of the arrest, and calculate prescription under both laws. If the STF orders interrogation, the 10 days run from that event. If a refugee claim concerns the same facts, the CONARE application and notice to the STF are separate steps. Until treaty and trigger dates are confirmed, the family cannot reliably choose between seeking release, refusal or delayed handover.
Frequently asked questions
Does Brazilian citizenship always prevent extradition?
A Brazilian by birth cannot be extradited. A naturalised citizen may fall within constitutional exceptions for a pre-naturalisation offence or proven involvement in illicit drug trafficking, as defined by law.
Can the same request be filed again after refusal?
Article 94 bars a new request based on the same facts after judicial refusal. Whether a later request concerns the same facts requires comparing the conduct, not just the offence title.
Does release end the extradition case?
No. Release under Article 84(5), an Article 86 custody change or Article 93 late-collection rule concerns detention or execution. The request may continue unless law requires otherwise.
Where should the family send documents?
Send them to the Brazilian lawyer handling the STF case, with the case number and interrogation date. Refugee evidence should also go through CONARE. For immediate arrest logistics, see the São Paulo arrest guide.
Official legislation and case-law sources
- Migration Law 13,445/2017, Arts 53 and 81–96 — official consolidated text.
- Brazilian Constitution, Arts 5 and 102 — official text.
- Refugee Law 9,474/1997, Arts 29 and 33–35 — official text.
- Decree 4,975/2004, MERCOSUR Extradition Agreement — official text.
- Decree 5,867/2006, MERCOSUR–Bolivia–Chile Agreement — official text.
- STF case-law notes on Ext 1.085 and Rcl 11.243.
- STF Ext 1.652 docket.
- IACHR mandate and precautionary measures.
- INTERPOL: Red Notices and data challenges.
- Treaty of Extradition with Portugal, Decree 1,325/1994 — Treaty of Extradition between Brazil and Portugal, signed 7 May 1991 and promulgated by Decree 1,325/1994 — official text and annex.
This information is general and is not legal advice for an individual case. The site team can coordinate cross-border defence with retained Brazilian counsel through the confidential enquiry form.