international legal cooperation - stf€¦ · 4 cooperate is now an international obligation...

1

INTERNATIONAL LEGAL INTERNATIONAL LEGAL

COOPERATIONCOOPERATION

2

IntroductionIntroduction

•• CCrime: a territorial issue.rime: a territorial issue.

•• Prevention and repression of the crime: Prevention and repression of the crime:

sovereignty of the national territory as a sovereignty of the national territory as a

limit.limit.

•• Judiciary Power limitJudiciary Power limit: territoriality.: territoriality.

INTERNATIONAL LEGAL COOPERATION

3

The present world situation and its reflect in the legal area: global society.

• transnational crime.

• the globalization of the crime = threat against the security of the States.

• sprayed patrimony of the criminals in many parts of the world.

• need of extraterritorial measures.


4

Cooperate is now an international Cooperate is now an international

obligationobligation

The importance of the International Legal Cooperation in XXI Century.


5

BaseBase

o Give safety and stability to theinternational relashionships.

o Respect the sovereignty.

o Consecrate the not-impunity of thecrimes.

o Mitigate the Priciple of the territoriality.


6

CaracteristicsCaracteristics

� Proceeding activities complex.

� Only public authorities may request.

� Executed by jurisdictional organs that belongto different States.

� Seek the same purpose.

� Observe the guarantees.


7

RulesRules ofof internalinternal lawlaw

� There is not a specific law about the subject matéria;

� There is a general principle described in the 4th article of theFederal constitution:

“Article 4. The international relations of the FederativeRepublic of Brazil are governed by the following principles: (...) IX – cooperation among people for the progress of mankind;”

� Homologation of foreing court decisions and granting of exequaturto letters rogatory are ruled in the Federal Constitution (articles105, I, i and 109, X), in the Code of Criminal Procedure(articles780 to 790) and in the Code of Civil Procedure (articles 201 to 202, 210 to 212 and 483 to 484);

� Federal law number 9.613/98 (Lei of Money Laundering);

� Internacional treaties (multilateral and bilateral) confirmed byBrasil;

� Resolução number 9, of 05-04-2005, do Superior Court of Justice.


8

ModalitiesModalities

� ACTIVE = send the cooperation request

� PASSIVE= receive cooperation request

� INFORMAL and DIRECT = It is independent ofthe Judiciary Power. Exemple:Interpol way(www.interpol.int), Grupo de Egmont(www.egmontgroup.org)

� FORMAL and DIRECT = direct assistance, extradiction, homologation of foreing courtdecision and letters rogatory

INTERNACIONAL LEGAL COOPERATION

9

Formal Formal CoCo--operationoperation ObjectsObjects

� Judicial proceedings of communication.

� Judicial proceedings related to the evidences.

� Judicial proceedings with preventive nature.

� Definitive judicial proceedings.

� Acts destined to the criminal proceeding.


10

DifferencesINTERNACIONAL LEGAL COOPERATION

A diligence will be executed by the nationalauthority that is competent.

After the exequatur it will be conducted to the judicial authority to be executed.

There is analysis of merit of the reasons ofthe request

There is no analysis of merit of the reasonsthat brought the foreing court to thatdecision. It analyses just the formal requirements and the ones that can mightviolate the public order and the nationalsovereignty

It is the need of assistance in order to takethe necessary steps in Brasil, to acomplishthe request(example. Localization of theaccused person or witness), including theproduction of a national court decision, when it is necessary (example. The broke ofthe secrecy)

Give to a foreing court decision effectivenessin Brasil

Does not demand “juízo de delibação”Demand a “juízo de delibação” by STJ (exequatur)

DIRECT LEGAL ASSISTANCE LETTERS ROGATORY

11

RulesRules ofof PublicPublic InternationalInternational LawLaw

o Bilateral: specific dispositives regarding to theexecution of the cooperation requests; solution to the execution problems (ex.: responsability for thepayment pelo pagamento das custas da execução da medida)

o Multilateral: wide and generic dispositions.

� United Nations Convention against TransnationalOrganized crime (Palermo Convention)

� United Nations Convention against Corruption andagainst Illicit Traffic in Narcotic Drugs andPsychotropic Substances(Viena Convention)


12

Article 18. Mutual legal assistance

UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME

1. States Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences covered by this Convention as provided for in article 3 and shall reciprocally extend to one another similar assistance where the requesting State Party has reasonable grounds to suspect that the offence referred to in article 3, paragraph 1 (a) or (b), is transnational in nature, including that victims, witnesses, proceeds, instrumentalities or evidence of such offences are located in the requested State Party and that the offence involves an organizedcriminal group.

2. Mutual legal assistance shall be afforded to the fullest extent possible under relevant laws, treaties, agreements and arrangements of the requested State Party with respect to investigations, prosecutions and judicial proceedings in relation to the offences for which a legal person may be held liable in accordance with article 10 of this Convention in the requesting State Party.


13

International Treaties and its application in Brasil

� To bring to internal ordainment the Treaty or Convention: It is a complex legislative process. It depends of the will of twoPowers:

o Celebrated by the President of the Republic

o Ratified by the National Congress through legislative decreespromulgation by the Senate

o Ratified by each State or International Organism

o Promulgated by act of the President of the Republic (executivepower)

o Published in the official press


14

Lack of Treaty

� Cooperation based in reciprocity.

� Requisitant State settle the compromisse ofgiving the same treatment to the requiredState in similar situations.

� Formalized throught Verbal Note transmitedby diplomatic way.

� Legal base: legislation of the required State


15

TheThe advantagesadvantages ofof thethe directdirect assistanceassistance diretodireto

� Cooperation is done by specialized organ in thesubject: Main Authority.

� Gennerally, there are a larger number oflegitimated to request the cooperation.

� Larger number of provisions: executorymeasures.


16

CooperationCooperation PriciplesPriciples

� Sovereignty

� Double Criminality

� Speciality


17

SovereigntySovereignty

� The jurisdiction is exercised by eachSovereign in the limits of its territory.

� Public Order Clause.

� Cooperation requests must be executed dueto the law.


18

Double Criminality Principle

� The fact that is the origin of the request, must be a crime in the legislation of the required State

� Mundial inclination to the mitigate of this Principle

� Bilateral deals ratified by Brasil, that renounce thedouble criminality: Spain, Italy and Peru

� Bilateral deals ratified by Brasil, that admit thedouble criminality as a mere faculty: Cuba, China, EUA e França


19

SpecialitySpeciality

� The evidences must be used only in theprocesses related in the cooperationrequirements

� It is not allowed the use of the evidence in other procedure, without a previous extensionrequest

� Extradiction:extradicted person cannot beprocessed, arrested or punished by the foreingState for whom was given, for other crime thatwas not in the request, unless the requiredState agree with the extension demand.

INTERNACIONAL JURIDIC COOPERATION

20

InternationalInternational TreatiesTreaties andand its application in its application in

BrasilBrasil

� Submission of the Treaty to the Federal Constitution

• According to the EC n. 45/2004, only the treaties andinternational Conventions about Human Rights that are approved, in each House of the National Congress, in tworounds of voting, by three fifths of the votes of therespective members shall be equivalent to constitutionalamendments.

• Any international treaty, without the requisits of the EC n. 45/2004, cannot be superior than the Federal Constitution.

INTERNATIONAL JURIDIC INFORMATION

21

HumanHuman RightsRights TreatiesTreaties

� Prison of na unfaithful trusteedão de depositário infiel.

� STF, in the judgement of the RE 466.343 e 349.703 (j. de 3-12-2008), concluded that Pact of San José da Costa Rica has a “supralegal” character. It is superior than theinternal norms and inferior than the Federal ConstitutionTherefore, today, in Brasil it is no more possible this kindof prison.

INTERNACIONAL JURIDIC COOPERATION

22

ConflictConflict betweenbetween HumanHuman RightsRights TreatiesTreaties andand

thethe Federal Federal ConstitutionConstitution

� It does not prepondarate the Principle of Hierarchy, butthe Principle of the better norm to the human being.

� There is not revogation of the Constitutional norm by thetreaty, but its application of the better norm in theconcrete case.


23

Future Future CenaryCenary

�Aprooval of a International JuridicCooperation law.

� International treaty that disposes aboutadministration of obstruction of propertyexecuted by international legal cooperation.


24

CONTACT:CONTACT:

[email protected]

international legal cooperation - stf€¦ · 4 cooperate is now an international obligation...

Documents