Garrastazu Advogados

Extradition from Brazil is decided by the Federal Supreme Court (Supremo Tribunal Federal — STF), not by the police and not by the government acting alone. Art. 82 of the Migration Law (Lei 13.445/2017) lists nine situations in which extradition shall not be granted, and art. 96 requires the requesting State to give six formal undertakings before any surrender takes place.

If a foreign country is asking Brazil to hand you over, extradition from Brazil is not a diplomatic formality that runs its course while you wait. It is a judicial proceeding with a closed list of refusal grounds, a ten-day defence window and a court that must rule before anyone is surrendered. This article is for the foreign national living, working or travelling in Brazil who has learned of an INTERPOL red notice or of a formal request, and for the family member or foreign lawyer following the case from abroad. Knowing which arguments the STF will hear, and which it will not, is what separates a defence built in time from one filed after the decisive moment has passed.

The question this article answers is not whether Brazil extradites. It does, under treaties and outside them. The question is what Brazil checks before it surrenders anyone, and the Migration Law answers that with an unusual degree of precision, article by article.

Can Brazil refuse to extradite a foreign national?

Yes. Art. 82 of the Migration Law (Lei 13.445/2017) sets out nine situations in which extradition shall not be granted, and one of them is enough to defeat the request. These are the legal grounds to refuse extradition in Brazil, and they apply to foreign nationals exactly as they apply to anyone else claimed by a foreign State.

• The person claimed is a native-born Brazilian.
• The fact behind the request is not a crime in Brazil or in the requesting State — the dual criminality requirement.
• Brazil is competent, under its own laws, to try the crime attributed to the person.
• Brazilian law punishes that crime with less than two years' imprisonment.
• The person is already being prosecuted in Brazil, or has been convicted or acquitted there, for the same fact on which the request is based.
• The offence is time-barred under Brazilian law or under the law of the requesting State.
• The fact constitutes a political offence or an offence of opinion.
• The person would answer, in the requesting State, before an exceptional court or tribunal.
• The person has been granted refugee status under Law 9.474/1997, or territorial asylum.

The first ground protects only the native-born. Art. 82, §5 of the Migration Law states that a naturalised Brazilian may be extradited in the situations set out in the Federal Constitution, and art. 82, §3 adds that, where the person acquired another nationality by naturalisation, what matters is whether the fact giving rise to the extradition came first.

Does Brazil need an extradition treaty to surrender someone?

No. A bilateral treaty makes the request smoother, but its absence does not stop it. The Migration Law itself contemplates the alternative: art. 84, §2 allows a request for precautionary arrest to be transmitted to the competent Brazilian authority through the INTERPOL focal point in the country, supported by documents proving the foreign arrest order and, where there is no treaty, by a promise of reciprocity received through diplomatic channels. Art. 89 then has the extradition request received by the competent Executive body and examined against the formal requirements demanded by the Migration Law or by a treaty — the wording assumes that a treaty may or may not exist.

Where a treaty does apply, it governs the points it regulates, including the deadline to formalise the request, which art. 84, §4 fixes at sixty days only in the absence of a specific treaty provision. Art. 122 of the Migration Law adds a rule that matters to any foreign national: applying the law does not prevent more favourable treatment guaranteed by a treaty to which Brazil is a party.

Which countries have an extradition treaty with Brazil?

Brazil maintains a long list of bilateral treaties, and two matter most to an English-speaking audience. The Brazil extradition treaty with the United States was signed in Rio de Janeiro on 13 January 1961, complemented by an Additional Protocol of 18 June 1962 and promulgated by Decree 55.750 of 11 February 1965. The treaty with the United Kingdom of Great Britain and Northern Ireland was signed in London on 18 July 1995, entered into force on 13 August 1997 and was promulgated by Decree 2.347 of 10 October 1997.

What can your defence actually argue before the STF?

Under art. 91, §1 of the Migration Law, the defence is filed within ten days of the interrogation and may address only three matters: the identity of the person claimed, a defect in the form of the documents, or the illegality of the extradition. The Federal Supreme Court does not retry the foreign accusation.

The consequence is strategic. Innocence and weak foreign evidence are not, standing alone, admissible arguments; everything that matters has to be reframed as illegality. Because art. 91 has the reporting justice schedule the interrogation and, where the person has no lawyer, appoint counsel or a curator, the ten-day window opens only after that hearing, which is why an extradition defence in Brazil for a foreign national is assembled before the interrogation, not after it.

What happens if the offence is time-barred under Brazilian law?

Extradition is refused. Art. 82, VI of the Migration Law bars surrender where punishability has been extinguished by the statute of limitations under Brazilian law or under the law of the requesting State. The limitation period is calculated under both systems, and the defence needs only one of them to have expired.

Can you be extradited for a fact already judged in Brazil?

No. Art. 82, V of the Migration Law bars extradition where the person is already being prosecuted in Brazil, or has been convicted or acquitted there, for the same fact on which the request is based. This is a separate ground from the statute of limitations in art. 82, VI: one turns on Brazilian jurisdiction having already taken up the same fact, the other on the passage of time.

Can Brazil extradite you if you face life imprisonment or the death penalty?

Yes, but only after the requesting State commits to commuting the sentence. Art. 96, III of the Migration Law requires the requesting State to undertake the commutation of a corporal, life or death penalty into a custodial sentence, respecting the thirty-year ceiling on time served stated in that provision. Without the undertaking, the surrender is not carried out.

One point deserves precision rather than confidence. Thirty years is the figure written into art. 96, III; the general ceiling on time served under a custodial sentence, in art. 75 of the Brazilian Penal Code, was later raised to forty years by Law 13.964/2019, which did not amend the Migration Law. Which figure applies in a given case belongs in a case assessment.

What must the requesting State promise before Brazil hands anyone over?

Six things. Art. 96 of the Migration Law provides that surrender shall not be carried out unless the requesting State assumes the undertakings below, each aimed at a specific abuse.

• Not to arrest or prosecute the person for any fact prior to the extradition request — the rule of specialty, which stops the accusation from widening once you are out of Brazilian jurisdiction.
• To credit the time spent in custody in Brazil as a result of the extradition.
• To commute a corporal, life or death penalty into a custodial sentence, respecting the thirty-year ceiling on time served stated in the provision.
• Not to hand the person to a third State claiming them without Brazil's consent.
• Not to treat any political motive as a factor aggravating the sentence.
• Not to subject the person to torture or to other cruel, inhuman or degrading treatment or punishment.

These diplomatic commitments are conditions of delivery, not recommendations. Their absence or inadequacy is a legitimate line of argument on the illegality of the surrender.

Does a refugee claim stop an extradition case in Brazil?

It suspends the case, and recognition of refugee status blocks it. Art. 34 of Law 9.474/1997 provides that an application for refuge suspends, until a final decision, any pending extradition proceeding (administrative or judicial) based on the facts grounding the claim. Art. 33 provides that recognition of refugee status prevents an extradition request based on those same facts from proceeding, and art. 82, IX of the Migration Law repeats the bar.

Refuge is a right with its own requirements, examined by the National Committee for Refugees (Comitê Nacional para os Refugiados — CONARE) on the merits of the claim of persecution. An application filed without genuine grounds does not become a lawful strategy because art. 34 attaches a procedural effect to it. The lawful response to an extradition request is to defend it and appear when summoned.

Can you be extradited while you are facing charges in Brazil?

Not immediately. Art. 95 of the Migration Law provides that where the person is being prosecuted or has been convicted in Brazil for an offence punishable by imprisonment, the extradition is executed only after the case ends or the sentence is served, subject to early release by the Judiciary or to a decision to transfer the sentenced person. Under art. 95, §1, surrender is also postponed where it would place the person's life at risk because of a serious illness proven by an official medical report.

There is one exception in the article itself. Art. 95, §2 provides that where the Brazilian proceeding or conviction concerns a minor offence, surrender may be carried out immediately.

What are the deadlines in a Brazilian extradition case?

Several, and they run from events the person does not control. This is the sequence set out in the Migration Law.

• The extradition request coming from a foreign State is received by the competent Executive body and, once the formal requirements are examined, forwarded to the competent judicial authority (art. 89).
• In urgent cases the interested State may ask for a precautionary arrest first; after the formal requirements are examined, the measure is put to the competent judicial authority, with the Federal Prosecution Service (Ministério Público Federal — MPF) heard beforehand (art. 84).
• Once the arrest is carried out, the extradition request is forwarded to the competent judicial authority (art. 84, §3).
• Absent a specific treaty provision, the foreign State has sixty days from notification of the arrest to formalise the request (art. 84, §4); if it does not, the person must be released and no fresh precautionary arrest may be sought on the same facts unless the extradition has been duly requested (art. 84, §5).
• The reporting justice schedules the interrogation and appoints counsel or a curator to anyone without a lawyer (art. 91).
• The defence is filed within ten days of the interrogation (art. 91, §1).
• The Federal Supreme Court rules on the legality and the merits of the request (art. 90).

If extradition is granted and surrender authorised by the competent Executive body, the requesting State has sixty days from the diplomatic communication to remove the person (art. 92); if it fails, the person is released (art. 93).

Is there any appeal against the STF decision?

No. Art. 90 of the Migration Law provides that no extradition shall be granted without a prior ruling by the Federal Supreme Court on the legality and the merits of the request, and that no appeal lies against that decision. Ruling on the merits of the request is not the same as ruling on guilt, and this is why the ten-day window carries the weight of the entire case.

Can you agree to be surrendered voluntarily?

Yes, under conditions. Art. 87 of the Migration Law allows voluntary surrender provided the declaration is express, the person is assisted by a lawyer and has been warned of the right to the judicial extradition proceeding and the protection it affords and the same provision states that the request is still decided by the Federal Supreme Court. Consent dispenses with the contested phase, not with the judicial ruling.

Why the ten days after the interrogation decide a Brazilian extradition case

This article provides general legal information on Brazilian law and is not legal advice for a specific case. Every situation depends on the applicable treaty and on the facts, and should be assessed by a lawyer.

The window under art. 91, §1 does not reopen, and the arguments that fit through it — dual criminality, the two-year threshold, the statute of limitations, the political character of the charge, defects in the documents, the adequacy of the undertakings under art. 96 — have to be assembled from two legal systems at once, usually in translation and against a clock that started with an arrest. Leticia Bittencourt Carvalho Bernardes heads the Criminal Law practice at Garrastazu Advogados, where the team works with extradition requests against foreign nationals, deletion requests before the Commission for the Control of INTERPOL's Files (CCF), and the migration consequences that travel alongside an international alert.

Frequently Asked Questions

Is an INTERPOL red notice enough for Brazil to extradite you?

No. A red notice may support a request for a precautionary arrest, but surrender depends on a formal extradition request. Under art. 84, §4 and §5 of the Migration Law, if the foreign State does not formalise it within sixty days of notification of the arrest, the person must be released.

Does the STF examine whether you are guilty of the foreign accusation?

No. Under art. 91, §1 of the Migration Law, the defence may only address identity, defects in the form of the documents or the illegality of the extradition. The Federal Supreme Court reviews the legality of the request, not the evidence gathered abroad.

If the STF refuses, can the same country ask again?

Not on the same facts. Art. 94 of the Migration Law states that once extradition has been denied at the judicial stage, no new request based on the same fact is admissible. A request grounded on genuinely different facts is a different case.

What happens if two countries request your extradition for the same fact?

Art. 85 of the Migration Law gives preference to the State in whose territory the offence was committed. Where the offences are different, preference goes to the State of the most serious crime under Brazilian law; if the offences are equally serious, to the first State to request the surrender; and if the requests are simultaneous, to the State of origin or, failing that, of domicile.

Can a political offence lead to extradition from Brazil?

As a rule, no: art. 82, VII of the Migration Law bars it. But art. 82, §1 allows surrender where the fact is principally an ordinary criminal offence, and art. 82, §4 allows the Federal Supreme Court to decline to treat terrorism, genocide, war crimes and crimes against humanity as political.

Do you need a lawyer in Brazil for the extradition proceeding?

Yes, and the law assumes it. Art. 91 of the Migration Law requires the reporting justice to appoint a lawyer or curator to a person who has none, and art. 4, IX of the same law guarantees migrants broad access to justice and full free legal assistance to those who prove insufficient means.

Content reviewed in September 2026, based on the legislation in force.