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1 Introduction
Extradition is an act of cooperation, which is performed between sovereign States at the request of one of them, turning in accused or convicted person of a crime to be prosecuted or to serve an already imposed sentence.2 As put by Emanuele Carnevale, the late nineteenth century and early twentieth century are marked by a quest for greater collaboration in the area of common international legal assistance against crime, no matter where it happened and where they found the suspects and/or indictees of such actions:
Noi siamo in tempo piuttosto di collaborazione, che evidentemente è una cosa diversa di azione: la prima rappresenta sempre un agire distinto, per quanto associato e coordinato; la seconda, invece, è un tutto unico, è l’apice del movimento unitario, lo dico quindi azione perchè guardo principalmente alla fase finale, di cui considero la presente come preparatoria, qualunque sia il corso di anni di cui essa abbia bisogno; e intanto anche per l’oggi la parola può accogliersi, intendendola in senso largo e non stretamente preciso3.
This work will examine the extradition treaty between Brazil and Italy in 1932 and the domestic legislation of each country on extradition from the current criminal-legal thought in that period. Brazil had issued a special law on the subject; Italy, on the other hand, left the matter to be regulated by provisions in the Criminal Code4. The goal is to see how these laws and the treaty between Italy and Brazil are composed in regards to the maintenance of the liberal tradition of the nineteenth century or to the rising authoritarianism experienced by both countries with Mussolini and Vargas in the first half of the twentieth century and their doctrinal term.
The relationship between treaty and domestic law is dialectical, because at the same time that the already present domestic legislation determines the treating possibilities,5 the international concerts directly influence changes in the extradition law by possessing the dynamics of international practice into a particular order, influencing the legislator’s new choices.
In this sense, criminal doctrine is a privileged locus to the extent that it builds a specific scenario on the theme, reflecting or moving away from criminal policy choices of each State. There is already historiography on the analysis of authoritarian inflows about Criminal Law6. Extradition has a double valence here, due to reflections within internal and external law. It is interesting to note how the presentation of a new discourse of authoritarian hue or the maintenance of a traditional liberal discourse behaves in this particular institute.
Authoritarianism presented itself after World War I as a front-line alternative to the liberal model in the context of a world crisis. In the 1930s, Fascism found itself bound in Italy, moving to an ‘Italian road to totalitarianism’.7 Brazil, in turn, experienced a period of uncertainty, since it had recently surpassed the Revolution of 1930, ruled by a provisional government that foreshadowed the future dictatorship claims of Getúlio Vargas that would take place in 1937.
A turnaround in the legal-criminal area was experienced. Fascism takes hold of Criminal Law as a regime’s legitimizing discourse by the authority of imposing a strict legislation. The criminalists of the period, led by Arturo Rocco8 and Vincenzo Manzini9 consolidate the legal technical approach that closes its eyes to the civil commitment of jurists from the previous period to keep against the role of interpreting the Law, regardless of its nature, when they did not place themselves directly on defence of Fascism10.
In Brazil, there is a clear succession of generations, where the imported and artificial debate between the classical and positive schools and the criminal concern in building a truly national criminal science starts to lag behind. Nevertheless, the response to the previous movement is very similar to the Italian one: Brazilian Criminal Law surrenders to the dogmatic paradigm of technical legal nature, in that criminal science is reduced to the study of the criminal law in force. The figure par excellence is Nélson Hungria, which in these early years of 1930 launches several studies in that direction.11
This work aims to analyze the standards (treaty and domestic law) relating to the Italian-Brazilian case, paying special attention to the discussion about the possibility of extradition of political criminals.
2 The 1932 Treaty and the Domestic Legislation Between Liberal Tradition and the Rising Authoritarianism
Even before the rise of Vargas, but already under Fascism, Brazil and Italy began negotiations for the making of their second extradition treaty, which was to be completed after the 1930 Revolution12. Henceforth, Brazilian law and the sparse Italian provisions would rule only on the present gaps in the recently struck agreement.
At that time, the new Italian Criminal Code of 1930 was already in force. Extradition regulated in Article 13 served a double discourse. Externally, it aimed to put Italy in the forefront of an early international collaboration to fight crime13, to the extent that it bore the maximum application speech of the institute by reducing exceptions to turn-ins14. It thus ended any distrust regarding foreign justice effectiveness15, because there would not even be a need for a turning in treaty16.
Domestically, however, such position met the proposed intensification of criminal law, a symbol of state authority, as so often hypothesized by Minister Alfredo Rocco, as by the doctrine affiliated to Fascism. In this sense we celebrate the supposed possibility of extradition of political offenders, the main target of this new conception of Criminal Law.
From the content of the treaty, the promise of the Brazilian Plenipotentiary Foreign Minister to the concert was about respect for the traditions, because “molded on more liberal principles and broader legal culture of our day, it constitutes a complementary to the series of approaching acts previously signed between the two countries”17.
The Explanatory Memorandum gives great prominence, for example, to the principle of extradition of nationals, which until now appeared as a breakthrough in the nations’ concert, being Brazil the first country to set such treaty with Italy, which recently allowed such a situation with novel coding18. In the case of extradition of nationals, Fascism and the Estado Novo took inverse directions. The possibility of extradition of nationals inserted by Article 13 of the new Italian Criminal Code was seen by the doctrine, as well as in the issue of political crime, as an avant-garde action of the regime under international collaboration19. There would be no fear, because it was conditioned to the existence of a treaty, not merely in need of a declaration of reciprocity, and even in case of suspicion, the administrative licensing system would have further protection20.
Among the treaties that would work under such logic, the first that Italy would subscribe to that effect was exactly in Brazil21. At the time, the constitution of 1891 and the law of 1911 allowed Brazil to such agreement. Putting oneself at international level as countries that gave an effective contribution to combating crime was a big motivation22.
Respecting the current Brazilian law of 1911 and the open clause of Article 13 of the Italian code, as well as the tendency of extradition treaties from the early twentieth century, one leaves the exhaustive list model for a generic clause that kept the institute’s job possible for all ordinary crimes (Article 2).
The exceptions contained in Article V, are the same ones that were already present in the national legislation. This excludes the possibility of extraditing “special” crimes, among which those committed by the press, politicians and the military (Article V, 5)23.
An interesting new feature was the inclusion of the impossibility of extradition if the crime in the requesting country is the jurisdiction of an exceptional court (Article 6, b). This article takes on importance to such an extent that in the time of entry into force of the treaty became active in Italy the Tribunale speciale per la difesa dello Stato, and that a few years later it would be Brazil to do such experiment with the Tribunal de Segurança Nacional.
Despite both courts having jurisdiction for the prosecution of political crimes, there could be discussion in the cases of application of the “Swiss” clause under the new treaty. Thus, with the possibility of extradition by the understanding that the offense was particularly common, the question would be if the courts could judge such crimes. Both courts were created as temporary agencies, but were made permanent. It would be strange for a country to consider exceptional a tribunal similar to that which it itself holds24.
From what investigated so far, there was no reference to the application of this clause from the treaty. On the one hand, we will see the expansion of the concept of political crimes in both jurisdictions with set limit on the external scope. On the other, there are studies that show a link within the police that would allow an underground action to the judicial means, typical of authoritarian regimes25.
The treaty also predicted the impossibility of extradition to the death penalty, allowed in Italy, unless commitment to conversion to imprisonment (Article 7, 2nd part). Even after an amendment to the 1937 Brazilian Constitution, such possibility was opened to the most serious political crimes and murderers. The Additional Protocol of 1937 dealt only with the impossibility of extradition of nationals, a necessary adjustment to the 1934 Constitution which had been maintained by the letter of 1937.
With the blow of November 10th 1937, Brazil turns to authoritarian means. Affirmed on the idea of nationalism, a discourse of marginalization from abroad which was reflected in the laws relating to extradition and deportation was created26.
The Decree-Law number 394 of April 28th 1938, sought to give new shape to extradition in Brazil. However, unlike the 1911 Law, it did not denounce treaties then in force, such as the Italian-Brazilian one of 1932 with the Additional Protocol of 1937. Their guidelines were used as additional tool in the omission of provisions about issues therein versed and indicated conditions for the establishment of new bilateral concerts.
The main emphasis of legislation was the regulation about the impossibility of extradition of nationals, definitely abandoning any possibility of cooperation as agreed with Italy in 1931. Brazil has pledged to punish the foreign agent in its own territory. The regulation was also highlighted on the impossibility of extradition of political offenders, as well as exceptions to this rule, although the warranty of non-extradition of political offenders, which appeared for the first time in 1934 Brazilian Constitution27, was not repeated in the letter granted in 1937.
3 The (Im)Possibility of Extradition Because of Political Crimes in the Authoritarianism Era
Sore point in regards to extradition is the question of political crime. The changes that Brazil and Italy imposed in their domestic laws to such category in the 1930s brought further discussion to the topic.
The change of concept of political crime, laid down in Article 8 of the new Italian code generated numerous discussions in the extraditional field. However, this construction that modifies assumptions of the previous code is a recurring theme in the legal-criminal thought of the time, because the international consensus, concerned about increased collaboration, tended to restrict the concept of political crimes28.
Considerable doctrine - generally enthusiastic to Fascism - defended the thesis that Italy would have started to allow extradition of political crime, by having omitted in his Article 1329, the prohibition in Article 9 of the Zanardelli Code30. Saltelli and Di Falco emphasize that this choice reflects the high disapproval the fascist State gives to political crimes deserving of severe punishment anywhere31.
Galdino Siqueira and Eduardo Espínola Filho accepted such a position in Brazil32. The latter was supported by a quote from Ugo Aloisi extracted from the article “Extradition” in the Nuovo Digesto Italiano, legal encyclopedia of wide circulation in the fascist period33. However, it seems that the Brazilian treatise did not looked to the text as a whole, because Aloisi himself, despite appearing to be in favor of the measure, highlights the humorous opposite effect that the definition of Article 8 produced on the external front34.
Fascism’s concern in expanding the concept of political crime created a discrepancy in the effects between the internal and external plans. On the one hand it provided a greater possibility of punishment in Italy as it expanded the list of behaviors that could frame this particular category of offenses that had a particular court with an exception procedure35. On the other, the second part of Article 8 of Rocco Code36 went against the principle of preponderance. Thus preventing international collaboration on the part of Italy, since setting the crime subjectively political it accepted the preponderance even if partially. In addition to Aloisi, such a current counted with Vincenzo Manzini37.
Moreover, Italy had not agreed to such a possibility in any treaty, rather the opposite, as in the case of the treaty between Italy and Brazil38. The treaty of 1931 would have placed the parties in a position of international consensus on the matter. In the words of Chancellor Afranio de Mello Franco, “it appears from the foregoing that the Extradition Treaty with Italy, even in the case of political crimes, followed our conventional law, where Brazil is part and it followed ancient traditions in the practice of the institute”39.
In fact, it was signed keeping the protection to the political criminal, contrary to what had already been set in Italy, in avant-garde position in the external front, but reactionary position in the internal front. The extradition of a political criminal by Italy would restrict to the possibility of a promise of reciprocity grounded in a disobedience to mutual comparison between Articles 8 and 1340. Even with the only opening provided by the insertion of the Swiss clause in the treaty it did not convince Manzini, because the broad discretion afforded to the requested State would easily render the arrangement useless41.
The Brazilian Act of 1938, already inside the authoritarian spirit of national security laws and the Constitution of 1937, showed the possibilities of opening the impossibility of extradition of political offenders in the paragraphs of its Article 2.º, § 2.º innovated by placing a series of political movements, if they acted with violence, to be excluded from the bounty of non-extradition.
Bento de Faria understood that such crimes, by violating a universal feeling about the established order, deserved punishment anywhere42. Such argument is based on a doctrinal consensus on the subject since the anarchic attacks appeared in the late nineteenth century. The punishment, according to the author, would really be worthy if such movements have a political program and are accepted by some civilized nation43. It is interesting that by the end, the minister says that the only modification with respect to the previous law was the issue of extradition of nationals.
Importantly, unlike the Italian case, the whole discussion about the concept of political crimes is out of the new Brazilian Criminal Code of 1940. Such code left the political crimes to the exceptional legislation. That way, the political dissension would be criminally fought duplicating the ‘legality level’44 to the legal-criminal order. The material force of the legality principle was mitigated with the creation of exceptional laws to control the political dissent, the innovations on extradition of political crimes also included.
Nélson Hungria faced the subject on several occasions. An example is his of the National Security Act of 1935. He was disappointed about the new dispositions that clashed with the traditional rulings on the subject45. To justify this situation, he quoted Francesco Carrara’s Programma di Diritto Criminale where it was explained how difficult it was to build a scientific construction of the subject46. In classical Carrara’s words, ‘when politics enter by the door, justice runs away through the window’47. According to the Italian jurist, if it was impossible to construct a philosophical Criminal Law on political crimes, one should focus on the positive Criminal Law, therefore Carrara himself took a stand regarding the legislative productions of the time. However, Hungria escaped from the thinkers of the penalistica civile48 approaching the criminal-legal technicality when exempted himself of judging the legislator’s work, that did not make any distinction between communists, anarchists and other ways of political dissent49.
The result is that the main political crimes listed in the Brazilian national security laws and the Rocco Code, in other words, the crimes of attempted subversion of the order50, cease to be political offenses for extradition if practiced by members of these political movements. We have here an effective nonsense, because Article V of the treaty designated the requested State as the competent authority.
Given the content of Article 8 of the Italian Criminal Code and conceptual layouts of successive national security laws of Brazil51, in both cases of broad spectrum, such conduct would always be considered a political crime in the territory, to the extent that communism was the main opposition to authoritarian regimes then present in Brazil and Italy. No wonder that the main defendants of political processes before the courts of both countries were the leaders of the national Communist parties.
Even if restricting the interpretation to anarchism, the situation worsened because the actions taken as a classical anarchist movement were punished in domestic law within the same laws that dealt with political crimes. Therefore, to Manzini, the expansion of the concept of political crime by Article 8 ended up considering acts of anarchism and terrorism as political crimes52.
4 Conclusion
The authoritarianism of Fascism reached the institute in the Criminal Code in 1930. If the original idea was the extinction of the clause, the concept of political crime prepared in the same code prevented its effectiveness, since the excessive internal amplitude was expressed as a restriction on international level. Moreover, there even were resistances that would prevent concerts from being performed without such a clause, of which the Italian-Brazilian treaty is exemplary.
The Brazilian Extradition Act of 1938 also brought authoritarian inflows. It aimed to achieve a certain communist movement, the enemy of the constitutional regime, as noted in the preamble to the Constitution of 1937. The expansion was intended to free the country of undesirable elements.
However, it was realized that such a search to the fullest extent of the Criminal Law, in the case of political crimes, came to create a paradox: the more repressive domestically, the less power on the external front. The Italian-Brazilian case turns out to be interesting. The inclusion of authoritarian elements in the internal legislation masked by a liberal vanguard position, possible only in the duality that extradition allows, does not achieve success internationally. In this arena, both countries end up taking more conservative positions.
Thus, there is no way to talk about a Fascism Criminal Law as a single block. It not only used the tenets of liberal tradition, but had to give way in order to remain active even at the time when it had greater support.
