Re Diaz

Fecha19 Febrero 1954
EmisorCorte Federal (Venezuela)
Venezuela, Federal Court.
Re Díaz.

Extradition — Conditions of — Refusal of Extradition for Procedural Reasons — Second Request for Extradition — The Law of Venezuela.

The Facts.—Spain requested the extradition of Fernández Díaz or Díez on a charge of swindling (estafa). The Federal Court denied the request, in a decision of August 7, 1953,1 on the ground that the request did not conform to the procedure set forth in Article 8 of the Extradition Treaty between Venezuela and Spain of January 22, 1894. The extradition request was revised in the light of this decision and re-submitted by Spain on December 1, 1953, and transmitted to the Federal Court on January 1, 1954.

Held: That the extradition must be refused. Where an extradition request had been refused for procedural reasons, a second request for the surrender of the same person for the same offence would not be entertained by the Court.

The Court said: “There is no provision in the extradition treaties which have been concluded by Venezuela nor in the positive law of the country which is expressly and definitively applicable to the case under consideration. The juridical basis for examination of the question raised must be found in general principles of international law and in other legal concepts which are recognized in Venezuela.

“In the Extradition Treaty between Venezuela and Bolivia of September 21, 1883, Article 16 provides:

‘If the Government which requests extradition or its agents do not take custody of the fugitive within three months, counted from the date of notification, the fugitive shall be released from custody, and no further claim to his surrender can be made on the charge which gave rise to the original extradition request.’

A similar provision appears in Article 16 of the Extradition Treaty with Belgium of March 13, 1884. Article 12 of the Extradition Treaty with Spain of January 22, 1894, provides that if within the time limit therein established ‘… the diplomatic agent of the demanding State has not taken custody of the fugitive, the fugitive will be set free, and he may not be detained again on the same grounds.’ The same principle is to be found in Article 14 of the Extradition Agreement concluded by Venezuela, Ecuador, Bolivia, Peru, and Colombia (Bolivarian Convention) on July 18, 1911. The Treaty of Extradition and Judicial Assistance in Penal Matters, concluded by Venezuela and Italy on August 23, 1930, includes an identical provision in Article 14, which states:

‘If the...

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