The Execution of Foreign Criminal Sentences in Brazil: Possibilities, Constitutional Limits, and Geopolitical Implications
By Rogério Santos do Nascimento
Attorney. Specialist in Constitutional Law and Administrative Law
1. Introduction
The enforcement of criminal penalties imposed by foreign judgments, although technically feasible within the Brazilian legal system, is a sensitive matter in light of the Federal Constitution, the Penal Code, and the Immigration Law (Law No. 13.445/2017), especially concerning national sovereignty, fundamental rights, and the principle of reciprocity. A deeper analysis of this legal instrument reveals latent tensions between Brazil’s international commitments and the constitutional guarantees granted to its nationals—a circumstance that becomes particularly relevant when the convicted individual is a high-ranking public agent, accused of internationally significant offenses, including those committed against foreign citizens.
2. The Transfer of Execution of Foreign Sentences and Article 100 of the Immigration Law
Article 100 of Law No. 13.445/2017 provides for the possibility of transferring the execution of penalties imposed by foreign criminal judgments, provided that cumulative requirements are met: (i) Brazilian nationality or personal connection with Brazil; (ii) final and unappealable judgment; (iii) remaining sentence of at least one year; (iv) dual criminality of the offense; and (v) existence of a treaty or promise of reciprocity.
This is a cooperative measure aimed at ensuring the effectiveness of international criminal jurisdiction, especially in contexts where extradition is not possible—as in the case of native Brazilians, protected by Article 5, item LI, of the Federal Constitution.
Furthermore, Brazil is a signatory to the Inter-American Convention on Serving Criminal Sentences Abroad, enacted by Decree No. 5.919 of October 3, 2006, which demonstrates its formal adherence to multilateral mechanisms of criminal cooperation. This convention authorizes the transfer and enforcement of criminal sentences among OAS member states, provided that requirements such as dual criminality, the convict’s consent, and nationality of the receiving state are met. Although the United States has not adhered to the treaty, its existence reinforces Brazil’s duty to structure domestic legal mechanisms compatible with the logic of international cooperation and state responsibility in combating impunity.
However, as noted by the Federal Public Prosecutor’s Office, there is no legal provision in the United States for the transfer of sentence execution under the mechanisms proposed by Brazilian law, which makes this path legally ineffective in various situations. The Prosecutor’s Office records that the U.S., Spain, France, and Uruguay do not recognize this form of cooperation, creating a legal and diplomatic deadlock—particularly in serious transnational crimes.
Additionally, the impossibility of extraditing Brazilian nationals constitutionally implies, through systematic interpretation, the need to improve Article 100 to make it more efficient as a substitute mechanism for executive extradition. The principle of aut dedere aut judicare—extradite or prosecute—is the foundation of this discussion and imposes on states a responsible alternative: to cooperate with international justice, even in the face of constitutional prohibitions on surrendering nationals.3. As Três Situações de Execução de Sentença Penal Estrangeira no Brasil
3.1. First Scenario – Brazilian national convicted abroad and transferred to serve the sentence in Brazil
This is the most common and socially acceptable situation: a Brazilian citizen convicted abroad, by a final judgment, who requests to serve their sentence on national soil for humanitarian reasons. This is a resocializing mechanism, provided for in bilateral treaties (such as the one Brazil maintains with the Netherlands) or based on a promise of reciprocity.
The process is conducted by the Department of Asset Recovery and International Legal Cooperation (DRCI) of the Ministry of Justice and may be initiated at the request of the convicted person, in coordination with the Ministries of Foreign Affairs and Justice.
The jurisprudence of the STJ has been consistent in granting the homologation of foreign criminal sentences, as long as the convicted person expresses their will and legal requirements are fulfilled, as seen in cases involving Brazilians detained in European or Latin American countries.
3.2. Second Scenario – Brazilian tried abroad, but with no possibility of execution in Brazil
In this scenario, a Brazilian national is investigated and tried in absentia or represented abroad, but resides or remains in Brazil. Although the sentence is final in the foreign country, Brazil cannot extradite them due to Article 5, item LI, of the Federal Constitution—which expressly prohibits the extradition of nationals, except for specific cases involving naturalized individuals who committed crimes prior to naturalization or drug trafficking.
The Supreme Court’s jurisprudence is clear: even if Brazil receives a request to execute the foreign sentence, it is not legally obligated to comply unless there is a specific international treaty, express reciprocity, or sovereign national interest. The risk of transforming the Brazilian judiciary into a mere “executor” of international criminal sanctions is avoided here based on robust constitutional grounds.
This hypothesis can take dramatic contours in the political-diplomatic sphere when the conviction involves cybercrimes committed against foreign citizens by Brazilian public agents. In this context, refusal to execute the sentence can be internationally interpreted as systemic impunity—compromising Brazil’s image in multilateral forums.
It is in this context that legislative reform becomes timely: Article 100 of the Immigration Law should be amended to establish a mandatory internal investigation procedure (autonomous criminal process or compulsory judicial homologation) in cases where constitutional impediments to extradition exist, particularly when the convicted party has committed high-severity transnational crimes.
3.3. Third Scenario – Defendant represented and convicted abroad, but who has never been physically present in the sentencing country
It is increasingly common to see international criminal actions filed against individuals who, through digital means, violate foreign laws without ever having set foot in that jurisdiction. If the defendant is represented, tried in absentia, and convicted—with or without default—compliance with the sentence depends on the existence of a treaty or promise of reciprocity and the internal legislation of the country where the person resides.
The absence of legal cooperation between the sentencing country and the state where the defendant resides prevents sentence execution. As a rule, Brazil does not enforce such sentences unless the convicted individual is a Brazilian national and expresses a desire to serve the sentence—an unlikely scenario in cases of politically motivated or internationally controversial convictions.
4. The Robinho Case: Unprecedented Precedent and Roadmap for the Future
The recent decision of the Federal Supreme Court (STF) in Habeas Corpus No. 239,162, reported by Justice Luiz Fux, marks a paradigmatic shift. The STF homologated, by majority, the conviction handed down by the Italian judiciary against former soccer player Robson de Souza, known as Robinho, for the crime of gang rape. The request for homologation was made by the foreign state and granted despite the constitutional prohibition on the extradition of Brazilian nationals.
According to the relator's vote, “the failure to execute the sentence due to the absence of a treaty would constitute international impunity, in defiance of penal cooperation between nations.” The STF recognized the obligation to grant domestic effect to the foreign judgment, based on the principles of human dignity, the prohibition of impunity, and cooperation among sovereign states.
This precedent is crucial: even in the absence of a specific treaty, Brazil—by accepting homologation—assumes the commitment to execute the sentence on its own territory. It is the consecration of the principle aut dedere aut judicare (extradite or prosecute), already enshrined in conventions such as Palermo and Mérida.
5. The Future of Penal Cooperation: What if the conviction comes from the United States?
What would happen if a high-ranking Brazilian public official—native-born, therefore not subject to extradition, were convicted in the United States for serious crimes committed against American citizens through digital means, including offenses such as hacking, transnational persecution, or psychological torture through social networks?
This hypothetical scenario, increasingly plausible in an interconnected world, exposes the fragility of the Brazilian legal framework when it comes to ensuring that serious transnational crimes do not go unpunished under the guise of sovereignty or constitutional immunities.
From the standpoint of international criminal law, the principle of aut dedere aut judicare requires that the State either extradite or prosecute. Since Brazil does not extradite its nationals (except in the narrow exceptions set forth in Article 5, LI of the Constitution), the only legitimate alternative is the internal prosecution or execution of the foreign criminal judgment. In this case, homologation of the foreign judgment becomes not merely a possibility, but a duty.
This situation could very well occur with a Brazilian public authority accused of committing digital crimes against American citizens—someone who has never set foot on U.S. soil but who, through transnational cyber practices, has victimized Americans. A foreign conviction, especially in the United States, may become the object of a request for homologation before the Brazilian Superior Court of Justice (STJ), under the terms of Article 105, I, “i” of the Federal Constitution.
Brazil, by refusing to extradite its nationals, must assume the burden of criminal enforcement in domestic territory, provided that the following conditions are met:
Final and unappealable sentence abroad;
Compatibility of the offense with Brazilian law (double criminality);
Non-violation of Brazilian public order or sovereignty;
Assurance of due process of law in the foreign trial.
This is exactly what occurred in the Robinho case, creating a strong and irreversible precedent. There is no longer any legal space for shielding politically influential individuals from international convictions under the mere pretext of “nationality.”
In this context, if the United States were to convict, through regular judicial proceedings and with broad defense, a Brazilian public agent for crimes committed from a distance, such as transnational persecution, and were to request the homologation of the sentence before the STJ, Brazil would be compelled to comply, provided the requirements are met. Not doing so would mean admitting to the international impunity of someone who used the national legal system to persecute foreigners, hide behind public office, and attack basic principles of human rights abroad.
More than a legal issue, this is a matter of international credibility. Brazil cannot position itself as a modern and democratic State if it serves as a sanctuary for individuals convicted abroad for serious and systemic crimes, including crimes against freedom of expression and digital privacy.
It is necessary that the institutions—particularly the STJ and the Federal Public Prosecutor's Office—prepare themselves to deal with this new generation of cross-border criminality, without political bias and without confusing criminal jurisdiction with ideological affiliations.
Brazil is part of the international system of human rights protection, and its domestic jurisdiction must reflect this commitment
6. Conclusion
The homologation and execution of foreign criminal judgments in Brazil is not merely a legal mechanism of international cooperation; it is a test of the maturity of Brazilian democracy and its constitutional institutions.
The jurisprudential evolution marked by the Robinho case—in which the Federal Supreme Court (STF) accepted the request of a foreign State to enforce a sentence against a Brazilian national—has opened a door that can no longer be closed. The Supreme Court affirmed, in substance and form, that impunity shall not be the legacy of Brazilian constitutionalism, and that the principle of human dignity, as well as the principle of international cooperation, must prevail over outdated conceptions of sovereign isolation.
In times when cybercrime, digital persecution, and transnational psychological violence are increasingly used as weapons of oppression, the role of national courts in giving effect to legitimate foreign sentences is indispensable. The Brazilian legal system must offer mechanisms to enforce such sentences when the convicted person is a Brazilian national who cannot be extradited, especially in cases involving crimes against foreign citizens, democratic institutions, or international legal assets.
Moreover, Brazil must abandon the false dichotomy between sovereignty and cooperation, recognizing that its true sovereignty lies in complying with the norms that it itself has ratified and incorporated into domestic law. The Inter-American Convention on Serving Criminal Sentences Abroad, the United Nations Convention against Transnational Organized Crime, and the United Nations Convention against Corruption are not mere ornaments in the legal landscape—they are binding legal instruments that require effectiveness.
Thus, if a Brazilian national of high political or institutional profile were convicted abroad—particularly in a country like the United States—for serious crimes of a digital nature, the Brazilian judiciary, and particularly the Superior Court of Justice, would have the constitutional and ethical obligation to homologate the judgment and enforce the sentence on Brazilian soil.
The world watches. The credibility of a nation is no longer measured solely by its economic power or military strength, but by its ability to uphold justice without borders. And the time has come for Brazil to choose, once and for all, whether it wishes to be a bastion of impunity or a beacon of justice.