Cooperação Jurídica Internacional sexta juízes do BRIC II.INGLÊS

INTERNATIONAL LEGAL
COOPERATION
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•
Crime: a territorial issue.
•
Prevention and repression of the crime:
sovereignty of the national territory as a
limit.
•
Judiciary Power limit: territoriality.
Introduction
INTERNATIONAL LEGAL COOPERATION
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• 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.
The present world situation and its reflect in
the legal area: global society.
INTERNATIONAL LEGAL COOPERATION
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Cooperate is now an international
obligation
The importance of the International Legal
Cooperation in XXI Century.
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o
Give safety and stability
international relashionships.
o
Respect the sovereignty.
o
Consecrate
crimes.
o
Mitigate the Priciple of the territoriality.
the
not-impunity
to
the
of
the
Base
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Proceeding activities complex.
Only public authorities may request.
Executed by jurisdictional organs that belong
to different States.
Seek the same purpose.
Observe the guarantees.
Caracteristics
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There is not a specific law about the subject matéria;
There is a general principle described in the 4th article of the
Federal constitution:
“Article 4. The international relations of the Federative
Republic 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 exequatur
to letters rogatory are ruled in the Federal Constitution (articles
105, I, i and 109, X), in the Code of Criminal Procedure(articles
780 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 by
Brasil;
Resolução number 9, of 05-04-2005, do Superior Court of Justice.
Rules of internal law
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ACTIVE = send the cooperation request
PASSIVE= receive cooperation request
INFORMAL and DIRECT = It is independent of
the Judiciary Power. Exemple:Interpol way
(www.interpol.int),
Grupo
de
Egmont
(www.egmontgroup.org)
FORMAL and DIRECT = direct assistance,
extradiction, homologation of foreing court
decision and letters rogatory
Modalities
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Judicial proceedings of communication.
Judicial proceedings related to the evidences.
Judicial proceedings with preventive nature.
Definitive judicial proceedings.
Acts destined to the criminal proceeding.
Formal Co-operation Objects
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LETTERS ROGATORY
DIRECT LEGAL ASSISTANCE
Demand a “juízo de delibação” by STJ
(exequatur)
Does not demand “juízo de delibação”
Give to a foreing court decision effectiveness
in Brasil
It is the need of assistance in order to take
the necessary steps in Brasil, to acomplish
the request(example. Localization of the
accused person or witness), including the
production of a national court decision,
when it is necessary (example. The broke of
the secrecy)
There is no analysis of merit of the reasons
that brought the foreing court to that
decision. It analyses just the formal
requirements and the ones that can might
violate the public order and the national
sovereignty
There is analysis of merit of the reasons of
the request
After the exequatur it will be conducted to
the judicial authority to be executed.
A diligence will be executed by the national
authority that is competent.
Differences
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o
Bilateral: specific dispositives regarding to the
execution of the cooperation requests; solution to
the execution problems (ex.: responsability for the
payment pelo pagamento das custas da execução
da medida)
o
Multilateral: wide and generic dispositions.
United Nations Convention against Transnational
Organized crime (Palermo Convention)
United Nations Convention against Corruption and
against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances(Viena Convention)
Rules of Public International Law
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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 organized
criminal 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.
Article 18. Mutual legal assistance
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To bring to internal ordainment the Treaty or Convention: It is
a complex legislative process. It depends of the will of two
Powers:
o
Celebrated by the President of the Republic
Ratified by the National Congress through legislative decrees
promulgation by the Senate
Ratified by each State or International Organism
Promulgated by act of the President of the Republic (executive
power)
Published in the official press
o
o
o
o
International Treaties and its application in
Brasil
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Cooperation based in reciprocity.
Requisitant State settle the compromisse of
giving the same treatment to the required
State in similar situations.
Formalized throught Verbal Note transmited
by diplomatic way.
Legal base: legislation of the required State
Lack of Treaty
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Cooperation is done by specialized organ in the
subject: Main Authority.
Gennerally, there are a larger number of
legitimated to request the cooperation.
Larger number
measures.
of
provisions:
executory
The advantages of the direct assistance direto
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Sovereignty
Double Criminality
Speciality
Cooperation Priciples
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The jurisdiction is exercised by
Sovereign in the limits of its territory.
each
Public Order Clause.
Cooperation requests must be executed due
to the law.
Sovereignty
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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 the
double criminality: Spain, Italy and Peru
Bilateral deals ratified by Brasil, that admit the
double criminality as a mere faculty: Cuba, China,
EUA e França
Double Criminality Principle
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The evidences must be used only in the
processes
related
in
the
cooperation
requirements
It is not allowed the use of the evidence in
other procedure, without a previous extension
request
Extradiction:extradicted person cannot be
processed, arrested or punished by the foreing
State for whom was given, for other crime that
was not in the request, unless the required
State agree with the extension demand.
Speciality
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Submission of the Treaty to the Federal Constitution
•
According to the EC n. 45/2004, only the treaties and
international Conventions about Human Rights that are
approved, in each House of the National Congress, in two
rounds of voting, by three fifths of the votes of the
respective members shall be equivalent to constitutional
amendments.
•
Any international treaty, without the requisits of the EC n.
45/2004, cannot be superior than the Federal Constitution.
International Treaties and its application in
Brasil
INTERNATIONAL JURIDIC INFORMATION
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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 the
internal norms and inferior than the Federal Constitution
Therefore, today, in Brasil it is no more possible this kind
of prison.
Human Rights Treaties
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It does not prepondarate the Principle of Hierarchy, but
the Principle of the better norm to the human being.
There is not revogation of the Constitutional norm by the
treaty, but its application of the better norm in the
concrete case.
Conflict between Human Rights Treaties and
the Federal Constitution
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Aprooval
of a
Cooperation law.
International
Juridic
International
treaty that disposes about
administration of obstruction of property
executed
by
international
legal
cooperation.
Future Cenary
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CONTACT:
[email protected]
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