Tribunal: Sup Court
Date: 16/11/2004
Parties: Duke Salazar, Francisco J. and other
Posted: 23/2/2005 SJA. JA 2005-I-537.
Date: 16/11/2004
Parties: Duke Salazar, Francisco J. and other
Posted: 23/2/2005 SJA. JA 2005-I-537.
EXTRADITION - Existence of a process in the country - Effects
OPINION OF THE ATTORNEY ATTORNEY .-
Whereas: I. The owner of the Federal Court for Criminal and Correctional 2 of Lomas de Zamora, Buenos Aires, upheld the extradition of Dina G. And Francisco J. Derco Duque Salazar (pages 379/386), requested by the Court for the Southern District of the city New York, USA.
defenses against this decision required of each brought an appeal (pages 391/397 and 399/417), which were granted by the lower court to fs. 418.
II. The request for extradition is credited with introducing heroin league in that country, in Argentina hiring people who were provided of the drug hidden in luggage to be delivered in New York City (conf request for extradition from fs . 1 / 168).
to grant extradition, so here it is, the federal magistrate was that the requirements under the treaty and considered that the factual circumstances that make the extradition request were different from those that serve to support a prosecution for issuing detention of Derco and Duque Salazar in the 1962 cars pending before his court.
III. In the proceedings the defense of trespass against Derco is that statements of "protected witnesses" that gave rise to the complaint against his pupil and photographic reconnaissance which would identify them null and void, so not be valid evidence to support the extradition request.
Besides, like the Duke defense Salazar, who argued the appeal only on this issue ", believes that granting of extradition affect the prohibition of double jeopardy, double jeopardy, because the facts in the process they are appointed following the Argentine court would be the deployment of a single criminal action than those for which they were required.
IV. First, in my opinion, the injuries related to acts intended to defend null Derco have been belatedly introduced, which supports its rejection in limine, pursuant to the doctrine of the court on the subject (Bug 320:1775, 323 : 3749, etc.).
In fact, nothing was said about this aspect during the pendency of trial or in oral discussion. The question was only invoked at the time of filing the ordinary remedy of appeal.
Notwithstanding this, note that it is not for the Argentine courts to discuss the validity of the test used in a foreign proceeding, much less can declare the invalidity of acts completed there.
In these matters, and has said the court, the special nature of extradition proceedings does not permit a thorough review of the elements that make up the process that follows the person in the requesting country, so that issues around the validity of evidence or procedural measures should be vented held there. Is that the procedure is subject to extradition requests is not a trial against defendant in its own right, and it will not fit in other discussions relating to the required identity and observance of the requirements of the laws and applicable treaties (324:1694 Faults and appointments).
And nothing prevents grounds that the photographs by Derco was identified to have been obtained by police in Argentina. Indeed, on another occasion, the court held inadmissible a similar challenge, based on the criteria mentioned above (Bug 324:3484).
V. On the other hand, regarding the alleged violation of the principle of non bis in idem, VE has recently considered a case with similar characteristics, which does not mediate between the object identity Argentine judicial aggravated drug-transport-and the cause for which extradition is requested, conspiracy-(from consid. 10 vote majority in A.234 XXXVII, in re "Arla Pita, Tamara and other s / extradition ", resolved on 31.10.2002), and it would be viable without an extradition request.
VI. But nevertheless, I believe that it is not idle, to give a more complete response to the double jeopardy argument posited by the defense coming up with the view to pour the rule on "Arla Pita" in the sense that they are applicable 311:2518 Fault precedents (1) and 324:1146; this, accepting that the offense of conspiracy would have accomplished the purpose of introducing drugs in the foreign State.
is that, in my view, applies in the present, and where relevant (for the U.S. country specific extradition treaty exists), the Single Convention on Narcotic Drugs, New York, 1961 - and its Protocol of Amendment-Geneva , 1972 - (approved by Legislative Decree 7672/1963 [2] and the Law 20449, respectively), which considered separate offenses narcotic action of a country's export and import into another (art. 36 inc. 2 ap. ai).
And if at that time was called for the implementation of that agreement, it is because the party believes that such international instruments are fully in force.
In my view, the lack of mention in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, held in Vienna in 1988 (Law 24072 [3]), a rule similar to Art . 36 of 1961 at all started to its validity, so, consequently, without it would imply a violation of the principle of pacta sunt servanda established in the Vienna Convention on the Law of Treaties (art. 26).
latter convention prescribes what should be the rules of interpretation to be used, guidelines would be paid the position I hold.
Indeed, under the heading "Interpretation of Treaties", art. 32 of the sect. 3 rd Part 3 provides: "... you can go to supplementary means of interpretation, in particular the work of the treaty and the circumstances of its conclusion, to confirm the meaning resulting from the application of art. 31 or to determine the meaning when the interpretation according to Art. 31: a) leaves the meaning ambiguous or obscure, or b) leads to a manifestly absurd or unreasonable. "
For its part, the art. 31 provides general hermeneutic rules establishing the principle that treaties must be interpreted in good faith, taking into account "context" in which it includes, besides the text itself, its preamble and annexes: a) the agreements between the parties held on the occasion of the instrument, b) those held by one or more parties and accepted by others, may be used, as well: c) subsequent agreements relating to the interpretation or application of the treaty, d) the subsequent practice in implementing e) other relevant rules of international law applicable in relations between the parties.
As noted, the statue a system of interpretation (whose validity has admitted failures VE 320:2948 [4], 322:2927, among others) in which the invocation of the preparatory work is justified only when hermeneutic-mediating work of art patterns. 31 - stop, even ambiguous meaning of the standard or outcome would be clearly wrong.
If any of these hypotheses are verified, so it can not be assigned to the omission in the text of the 1988 Convention Art. 36 Single Convention on a different meaning than the mere silence means, since it would be appropriate here to invoke the preparatory work for it, because they have a secondary and instrumental value only, ie to confirm or correct an interpretation based on criteria art. 31.
Not even when a purely literal interpretation of the text, attributing their meaning "natural and ordinary" - sufficient to properly clarify an issue is allowed to resort to the preparatory work (travaux préparatoires), according to the principles laid down by the International Court of Justice in the advisory opinion of 3/3/1950, "Competence of the General Assembly for the admission of a State to the United Nations. "
Therefore, a fortiori, not be introducing this system of interpretation when it seeks to explain the absence of a standard, as is the case of Art. 36 Single Convention. Moreover, if not for use any hermeneutical guidelines referred to, since there is no one to interpret text.
VII. However, in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, as stated, the rule in question has not been included, but the text of the instrument is inferred that the obligations assumed under the Single Convention continue in full force, at least in regard to relations between Argentina and the United States.
In this sense, art. 25, under the title "no derogatory effect on previous rights and obligations under the Convention" provides that: "The provisions of this Convention are without prejudice to the rights and obligations of the parties to this Convention, under 1961 Convention, the Convention 1961, as amended and the Convention of 1971 ".
Therefore, there is an express confirmation of the validity of the previous conventions, without it being possible to infer an implied repeal of them or any part thereof, unless they were explicitly contrary to the 1988 ("... without prejudice to the rights and obligations of the parties to this Convention
..."). And while the article could be estimated transcript is capable of being interpreted in another sense-that is, the previous conventions remain valid only as to match the text of the 1988 - clarifies this apparent uncertainty confronting the other versions of the instrument, that, pursuant to art. 33, must also be considered authentic texts.
In fact, art. 25 of the document in English said: "The Provisions of this Convention and Stock Shall Not derogate from rights or Obligations Undertaken Enjoyed by Parties to this Convention under the 1961 Convention, the 1961 Convention as amended and the 1971 Convention." And finally, if it still poses some uncertainty, the French version is categorically telling: "Les dispositions of the present Convention ne à aucun droit ou dérogent obligation that the 1961 Convention, the Convention of 1961 modifiée ou telle that the Convention of 1971 reconnaissent imposent ou aux Parties to this Convention ".
Hence the only conclusion that I consider viable, given that both the Republic of Argentina and the United States are part of the Single Convention, is that the question has to abide by its provisions. In this sense, has told the court that when the country ratifies an international treaty requires that their administrations, courts apply it to the assumptions that the treaty provides for it, especially if they are described with specificity as to allow immediate implementation (Bug 315:1492 [5], 318:2639 [6]).
In conclusion, in my opinion, beyond the legal consequences assigned to the behaviors and Derco Salazar Duque can not be inferred, as the defense contends that they constitute the production of a double jeopardy only fact which undermines the principle of ne bis in idem, as the typical duality of the crime of trafficking could lock invalidated before the rule of interpretation laid down in Art. 36 para. 2 nd par. to inc. i of 1961, where it appears that the crimes listed therein should be considered as separate offenses if committed in different countries, since the two actions, and introduce export-injure both systems and have different time consumption, even though they may be a single design (Failures 311:2518, 324:1146 and vote Dr. Moline O'Connor A.234 XXXVII).
VIII. For all these reasons, it is my opinion that your Excellency may confirm the decision in all matters were subject to appeal .- Luis S. Gonzalez Warcalde.
Buenos Aires, November 16, 2004 .- Considering: 1. U.S. District Judge in Criminal and Correctional Zamora Lomas 2, upheld the extradition of Dina G. Derco (pages 379/386), requested by the Court for the Southern District of New York City, USA. Against that decision, the defense filed an appeal to ordinary, granted to FS. 418.
2. The extradition of the name is required for prosecution for "unlawful association to import heroin into the United States in violation of sect. 963, 21 USC. "(Conf note of the Embassy of the United States of America, pp. 162). It is clear from the application in question, Derco be part of a drug smuggling organization, within which would been in charge of organizing trips for the emails to the United States, buying clothes and delivery of the suitcases containing heroin.
3. That, in turn, the federal judge intervening in this court issued an indictment and imprisonment trial regarding the cause named in 1962 to the Secretariat n. 5 of that court for the crimes specified in Art. 7 law 23 737 (7) (organization and financing of drug trafficking activities) and also by art. 5 inc. c (drug store), committed with the aggravating circumstance of art. 11 inc. c of the Act (acts committed with the involvement of three or more persons organized).
4. The case mentioned in the preceding paragraph was made "in order to investigate the activities of international drug trafficking to be conducted by a Colombian." Such an organization would be dedicated to send drugs to Europe and the United States through couriers recruited for this purpose.
5. That, as noted, the extradition was requested by the conspiracy to export heroin United States have been committed by Derco and other members of an organization dedicated to drug trafficking. Such activity, however, is what gives substance to the complaint to the person named in relation to art. 23737 7 law of the case 1962. In such circumstances, the estrangement is inappropriate, because the act for which he is required to Derco is already on trial in Argentina (art. 5 of the Extradition Treaty between Argentina and the United States of America, 25126 law [8] .)
6. That is without prejudice to the foregoing, the fact that the acts for which extradition is requested not agree in full with the investigation in our country, but that what matters is that the entire content rebuke the conduct for which claimant is already covered in the broader complaint that is being criminally prosecuted in this jurisdiction (325:2777 Failures, "Arla Pita [9 ] Petracchi judge's vote).
Therefore, having ruled the prosecutor, it reverses the original ruling and rejected the extradition request. Notifíquese and devuélvanse the case to court of origin. Enrique S. Petracchi .- Carlos S. Fayt .- John C. Eugene R. Maqueda .- Zaffaroni .- Elena I. Highton de Nolasco. In dissent, Augusto C. Belluscio .- Antonio Boggiano. Dissent
DR. Belluscio .- Considering: 1. That the decision of the owner Federal Court and Federal Criminal n. 2 of Lomas de Zamora granted the extradition of Dina G. Derco at the request of the United States for trial in order to the crime of conspiracy to import heroin appointed to defend the ordinary remedy of appeal filed, which was granted to fs. 418.
2. That the appellant questioned the lack of incorporation of the witness statements received abroad, the participation of an "agent provocateur" and photo reconnaissance conducted in the requesting State. They argued that there was factual identity between the acts for which extradition is required and those that are the subject of the cause against him before national courts, so that his extradition would violate the prohibition of double jeopardy (conf fs. 399/417).
3. That the memorial of fs. 440/443 the prosecutor requested to confirm the original ruling and then rise to extradition.
4. That according to established practice of this court, the special nature of extradition proceedings does not permit a thorough review of the elements that make up the process that follows the person in the requesting country, so that questions about the validity of proof or procedural measures should be vented concluded there (acc. Faults 324:1694 and appointments).
5. That basis jurisprudential approach in that it is not for the treatment of grievances related to the validity of the statements and examinations performed in the requesting state. Beyond that the alleged nothing about it at the time of the hearing held to debate fs. 372/376, so it should be noted that such grievances have been introduced late (conf cause L.321 XXXVII, "Linardi Martínez, Walter J. s / extradition [Uruguay]," resolved on 8/8/2002 and appointments ) - the procedure is subject to extradition requests is not a trial against the accused in its own right, and it will not fit in other discussions relating to the identity and compliance required of the requirements of the laws and applicable treaties (conf failures and appointments 324:1694).
6. Nor appropriate to treat the alleged violation of the principle ne bis in idem. Beyond this court has stated that there is no identity between the offense of transportation of drugs and the conspiracy (conf "Arla Pita, consid. 10-Fault 325:2777 -), the grievance lacks sufficient foundation because the appellants failed to rebut the arguments considered by the lower court to dismiss (conf failures 320:1775 and 322:486, among others, and see fs. 384/384 row. and 404/415).
the foregoing, after hearing the prosecutor, the court finds: I. Reject the appeal ordinary appeal filed by Dina G. Derco, and II. Confirm the sentence appealed. Presents notified and refunded. Dissent
DR. BOGGIANO .- Considering: 1. That the decision of the head of the Federal Court and Federal Criminal n. 2 of Lomas de Zamora granted the extradition of Dina G. Derco at the request of the United States for trial in order to the crime of conspiracy to import heroin appointed to defend the ordinary remedy of appeal filed, which was granted to fs. 418.
2. That the appellant questioned the lack of incorporation of the witness statements received abroad, the participation of an "agent provocateur" and photographic reconnaissance conducted in the requesting State. They argued that there was factual identity between the acts for which extradition is required and those that are the subject of the case that remains before the national courts, so that his extradition would violate the prohibition of double jeopardy (conf fs . 399/417).
3. That the memorial of fs. 440/443 the prosecutor requested to confirm the original ruling and then rise to extradition.
4. That according to established practice of this court, the special nature of extradition proceedings does not permit a thorough review of the elements that make up the process followed to the person in the requesting country, so that questions about the validity of evidence or procedural measures should be vented concluded there (acc. 324:1694 Faults and appointments).
5. That, based on the jurisprudential approach is not for the processing of grievances related to the validity of the statements and examinations performed in the requesting State. Beyond that the alleged nothing about it at the time of the hearing held to debate fs. 372/376, so it should be noted that such grievances have been introduced late (conf cause L.321 XXXVII, "Linardi Martínez, Walter J. s / extradition [Uruguay]," resolved on 8/8/2002 and appointments ) - the procedure is subject to extradition requests is not a trial against the accused in its own right, and it will not fit in other discussions relating to the required identity and compliance with the requirements of the laws and applicable treaties (conf failures and appointments 324:1694).
6. Nor appropriate to treat the alleged violation of the principle ne bis in idem. Beyond this court has stated that there is no identity between the offense of transportation of drugs and the conspiracy (conf "Arla Pita, consid. 10-Fault 325:2777 -), the grievance lacks sufficient foundation because the appellants failed to rebut the arguments taken into account by the lower court to dismiss (conf failures 320:1775 and 322:486, among others, and see fs. 384/384 row. and 404/415).
7. That, considering particularly valuable to promote international judicial cooperation in the field, corresponds to result in delivery of the required temporary and property and evidence requested (arts. 13 and 15 of the Extradition Treaty with the United States of America) in order coordinate the processing in both countries under conventional and customary rules applicable in order to achieve a full trial, without duplication or impairments, for which Argentine judges are empowered by their own jurisdiction, without prejudice, where appropriate, of the relevant authorizations that would require this Court.
So, after hearing the prosecutor, declared from the ordinary appeal filed on fs. 379/386 and resolves to confirm the point I from the original ruling and repeal Section II to the extent arising from the consid. 7. Presents notified and refunded.
defenses against this decision required of each brought an appeal (pages 391/397 and 399/417), which were granted by the lower court to fs. 418.
II. The request for extradition is credited with introducing heroin league in that country, in Argentina hiring people who were provided of the drug hidden in luggage to be delivered in New York City (conf request for extradition from fs . 1 / 168).
to grant extradition, so here it is, the federal magistrate was that the requirements under the treaty and considered that the factual circumstances that make the extradition request were different from those that serve to support a prosecution for issuing detention of Derco and Duque Salazar in the 1962 cars pending before his court.
III. In the proceedings the defense of trespass against Derco is that statements of "protected witnesses" that gave rise to the complaint against his pupil and photographic reconnaissance which would identify them null and void, so not be valid evidence to support the extradition request.
Besides, like the Duke defense Salazar, who argued the appeal only on this issue ", believes that granting of extradition affect the prohibition of double jeopardy, double jeopardy, because the facts in the process they are appointed following the Argentine court would be the deployment of a single criminal action than those for which they were required.
IV. First, in my opinion, the injuries related to acts intended to defend null Derco have been belatedly introduced, which supports its rejection in limine, pursuant to the doctrine of the court on the subject (Bug 320:1775, 323 : 3749, etc.).
In fact, nothing was said about this aspect during the pendency of trial or in oral discussion. The question was only invoked at the time of filing the ordinary remedy of appeal.
Notwithstanding this, note that it is not for the Argentine courts to discuss the validity of the test used in a foreign proceeding, much less can declare the invalidity of acts completed there.
In these matters, and has said the court, the special nature of extradition proceedings does not permit a thorough review of the elements that make up the process that follows the person in the requesting country, so that issues around the validity of evidence or procedural measures should be vented held there. Is that the procedure is subject to extradition requests is not a trial against defendant in its own right, and it will not fit in other discussions relating to the required identity and observance of the requirements of the laws and applicable treaties (324:1694 Faults and appointments).
And nothing prevents grounds that the photographs by Derco was identified to have been obtained by police in Argentina. Indeed, on another occasion, the court held inadmissible a similar challenge, based on the criteria mentioned above (Bug 324:3484).
V. On the other hand, regarding the alleged violation of the principle of non bis in idem, VE has recently considered a case with similar characteristics, which does not mediate between the object identity Argentine judicial aggravated drug-transport-and the cause for which extradition is requested, conspiracy-(from consid. 10 vote majority in A.234 XXXVII, in re "Arla Pita, Tamara and other s / extradition ", resolved on 31.10.2002), and it would be viable without an extradition request.
VI. But nevertheless, I believe that it is not idle, to give a more complete response to the double jeopardy argument posited by the defense coming up with the view to pour the rule on "Arla Pita" in the sense that they are applicable 311:2518 Fault precedents (1) and 324:1146; this, accepting that the offense of conspiracy would have accomplished the purpose of introducing drugs in the foreign State.
is that, in my view, applies in the present, and where relevant (for the U.S. country specific extradition treaty exists), the Single Convention on Narcotic Drugs, New York, 1961 - and its Protocol of Amendment-Geneva , 1972 - (approved by Legislative Decree 7672/1963 [2] and the Law 20449, respectively), which considered separate offenses narcotic action of a country's export and import into another (art. 36 inc. 2 ap. ai).
And if at that time was called for the implementation of that agreement, it is because the party believes that such international instruments are fully in force.
In my view, the lack of mention in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, held in Vienna in 1988 (Law 24072 [3]), a rule similar to Art . 36 of 1961 at all started to its validity, so, consequently, without it would imply a violation of the principle of pacta sunt servanda established in the Vienna Convention on the Law of Treaties (art. 26).
latter convention prescribes what should be the rules of interpretation to be used, guidelines would be paid the position I hold.
Indeed, under the heading "Interpretation of Treaties", art. 32 of the sect. 3 rd Part 3 provides: "... you can go to supplementary means of interpretation, in particular the work of the treaty and the circumstances of its conclusion, to confirm the meaning resulting from the application of art. 31 or to determine the meaning when the interpretation according to Art. 31: a) leaves the meaning ambiguous or obscure, or b) leads to a manifestly absurd or unreasonable. "
For its part, the art. 31 provides general hermeneutic rules establishing the principle that treaties must be interpreted in good faith, taking into account "context" in which it includes, besides the text itself, its preamble and annexes: a) the agreements between the parties held on the occasion of the instrument, b) those held by one or more parties and accepted by others, may be used, as well: c) subsequent agreements relating to the interpretation or application of the treaty, d) the subsequent practice in implementing e) other relevant rules of international law applicable in relations between the parties.
As noted, the statue a system of interpretation (whose validity has admitted failures VE 320:2948 [4], 322:2927, among others) in which the invocation of the preparatory work is justified only when hermeneutic-mediating work of art patterns. 31 - stop, even ambiguous meaning of the standard or outcome would be clearly wrong.
If any of these hypotheses are verified, so it can not be assigned to the omission in the text of the 1988 Convention Art. 36 Single Convention on a different meaning than the mere silence means, since it would be appropriate here to invoke the preparatory work for it, because they have a secondary and instrumental value only, ie to confirm or correct an interpretation based on criteria art. 31.
Not even when a purely literal interpretation of the text, attributing their meaning "natural and ordinary" - sufficient to properly clarify an issue is allowed to resort to the preparatory work (travaux préparatoires), according to the principles laid down by the International Court of Justice in the advisory opinion of 3/3/1950, "Competence of the General Assembly for the admission of a State to the United Nations. "
Therefore, a fortiori, not be introducing this system of interpretation when it seeks to explain the absence of a standard, as is the case of Art. 36 Single Convention. Moreover, if not for use any hermeneutical guidelines referred to, since there is no one to interpret text.
VII. However, in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, as stated, the rule in question has not been included, but the text of the instrument is inferred that the obligations assumed under the Single Convention continue in full force, at least in regard to relations between Argentina and the United States.
In this sense, art. 25, under the title "no derogatory effect on previous rights and obligations under the Convention" provides that: "The provisions of this Convention are without prejudice to the rights and obligations of the parties to this Convention, under 1961 Convention, the Convention 1961, as amended and the Convention of 1971 ".
Therefore, there is an express confirmation of the validity of the previous conventions, without it being possible to infer an implied repeal of them or any part thereof, unless they were explicitly contrary to the 1988 ("... without prejudice to the rights and obligations of the parties to this Convention
..."). And while the article could be estimated transcript is capable of being interpreted in another sense-that is, the previous conventions remain valid only as to match the text of the 1988 - clarifies this apparent uncertainty confronting the other versions of the instrument, that, pursuant to art. 33, must also be considered authentic texts.
In fact, art. 25 of the document in English said: "The Provisions of this Convention and Stock Shall Not derogate from rights or Obligations Undertaken Enjoyed by Parties to this Convention under the 1961 Convention, the 1961 Convention as amended and the 1971 Convention." And finally, if it still poses some uncertainty, the French version is categorically telling: "Les dispositions of the present Convention ne à aucun droit ou dérogent obligation that the 1961 Convention, the Convention of 1961 modifiée ou telle that the Convention of 1971 reconnaissent imposent ou aux Parties to this Convention ".
Hence the only conclusion that I consider viable, given that both the Republic of Argentina and the United States are part of the Single Convention, is that the question has to abide by its provisions. In this sense, has told the court that when the country ratifies an international treaty requires that their administrations, courts apply it to the assumptions that the treaty provides for it, especially if they are described with specificity as to allow immediate implementation (Bug 315:1492 [5], 318:2639 [6]).
In conclusion, in my opinion, beyond the legal consequences assigned to the behaviors and Derco Salazar Duque can not be inferred, as the defense contends that they constitute the production of a double jeopardy only fact which undermines the principle of ne bis in idem, as the typical duality of the crime of trafficking could lock invalidated before the rule of interpretation laid down in Art. 36 para. 2 nd par. to inc. i of 1961, where it appears that the crimes listed therein should be considered as separate offenses if committed in different countries, since the two actions, and introduce export-injure both systems and have different time consumption, even though they may be a single design (Failures 311:2518, 324:1146 and vote Dr. Moline O'Connor A.234 XXXVII).
VIII. For all these reasons, it is my opinion that your Excellency may confirm the decision in all matters were subject to appeal .- Luis S. Gonzalez Warcalde.
Buenos Aires, November 16, 2004 .- Considering: 1. U.S. District Judge in Criminal and Correctional Zamora Lomas 2, upheld the extradition of Dina G. Derco (pages 379/386), requested by the Court for the Southern District of New York City, USA. Against that decision, the defense filed an appeal to ordinary, granted to FS. 418.
2. The extradition of the name is required for prosecution for "unlawful association to import heroin into the United States in violation of sect. 963, 21 USC. "(Conf note of the Embassy of the United States of America, pp. 162). It is clear from the application in question, Derco be part of a drug smuggling organization, within which would been in charge of organizing trips for the emails to the United States, buying clothes and delivery of the suitcases containing heroin.
3. That, in turn, the federal judge intervening in this court issued an indictment and imprisonment trial regarding the cause named in 1962 to the Secretariat n. 5 of that court for the crimes specified in Art. 7 law 23 737 (7) (organization and financing of drug trafficking activities) and also by art. 5 inc. c (drug store), committed with the aggravating circumstance of art. 11 inc. c of the Act (acts committed with the involvement of three or more persons organized).
4. The case mentioned in the preceding paragraph was made "in order to investigate the activities of international drug trafficking to be conducted by a Colombian." Such an organization would be dedicated to send drugs to Europe and the United States through couriers recruited for this purpose.
5. That, as noted, the extradition was requested by the conspiracy to export heroin United States have been committed by Derco and other members of an organization dedicated to drug trafficking. Such activity, however, is what gives substance to the complaint to the person named in relation to art. 23737 7 law of the case 1962. In such circumstances, the estrangement is inappropriate, because the act for which he is required to Derco is already on trial in Argentina (art. 5 of the Extradition Treaty between Argentina and the United States of America, 25126 law [8] .)
6. That is without prejudice to the foregoing, the fact that the acts for which extradition is requested not agree in full with the investigation in our country, but that what matters is that the entire content rebuke the conduct for which claimant is already covered in the broader complaint that is being criminally prosecuted in this jurisdiction (325:2777 Failures, "Arla Pita [9 ] Petracchi judge's vote).
Therefore, having ruled the prosecutor, it reverses the original ruling and rejected the extradition request. Notifíquese and devuélvanse the case to court of origin. Enrique S. Petracchi .- Carlos S. Fayt .- John C. Eugene R. Maqueda .- Zaffaroni .- Elena I. Highton de Nolasco. In dissent, Augusto C. Belluscio .- Antonio Boggiano. Dissent
DR. Belluscio .- Considering: 1. That the decision of the owner Federal Court and Federal Criminal n. 2 of Lomas de Zamora granted the extradition of Dina G. Derco at the request of the United States for trial in order to the crime of conspiracy to import heroin appointed to defend the ordinary remedy of appeal filed, which was granted to fs. 418.
2. That the appellant questioned the lack of incorporation of the witness statements received abroad, the participation of an "agent provocateur" and photo reconnaissance conducted in the requesting State. They argued that there was factual identity between the acts for which extradition is required and those that are the subject of the cause against him before national courts, so that his extradition would violate the prohibition of double jeopardy (conf fs. 399/417).
3. That the memorial of fs. 440/443 the prosecutor requested to confirm the original ruling and then rise to extradition.
4. That according to established practice of this court, the special nature of extradition proceedings does not permit a thorough review of the elements that make up the process that follows the person in the requesting country, so that questions about the validity of proof or procedural measures should be vented concluded there (acc. Faults 324:1694 and appointments).
5. That basis jurisprudential approach in that it is not for the treatment of grievances related to the validity of the statements and examinations performed in the requesting state. Beyond that the alleged nothing about it at the time of the hearing held to debate fs. 372/376, so it should be noted that such grievances have been introduced late (conf cause L.321 XXXVII, "Linardi Martínez, Walter J. s / extradition [Uruguay]," resolved on 8/8/2002 and appointments ) - the procedure is subject to extradition requests is not a trial against the accused in its own right, and it will not fit in other discussions relating to the identity and compliance required of the requirements of the laws and applicable treaties (conf failures and appointments 324:1694).
6. Nor appropriate to treat the alleged violation of the principle ne bis in idem. Beyond this court has stated that there is no identity between the offense of transportation of drugs and the conspiracy (conf "Arla Pita, consid. 10-Fault 325:2777 -), the grievance lacks sufficient foundation because the appellants failed to rebut the arguments considered by the lower court to dismiss (conf failures 320:1775 and 322:486, among others, and see fs. 384/384 row. and 404/415).
the foregoing, after hearing the prosecutor, the court finds: I. Reject the appeal ordinary appeal filed by Dina G. Derco, and II. Confirm the sentence appealed. Presents notified and refunded. Dissent
DR. BOGGIANO .- Considering: 1. That the decision of the head of the Federal Court and Federal Criminal n. 2 of Lomas de Zamora granted the extradition of Dina G. Derco at the request of the United States for trial in order to the crime of conspiracy to import heroin appointed to defend the ordinary remedy of appeal filed, which was granted to fs. 418.
2. That the appellant questioned the lack of incorporation of the witness statements received abroad, the participation of an "agent provocateur" and photographic reconnaissance conducted in the requesting State. They argued that there was factual identity between the acts for which extradition is required and those that are the subject of the case that remains before the national courts, so that his extradition would violate the prohibition of double jeopardy (conf fs . 399/417).
3. That the memorial of fs. 440/443 the prosecutor requested to confirm the original ruling and then rise to extradition.
4. That according to established practice of this court, the special nature of extradition proceedings does not permit a thorough review of the elements that make up the process followed to the person in the requesting country, so that questions about the validity of evidence or procedural measures should be vented concluded there (acc. 324:1694 Faults and appointments).
5. That, based on the jurisprudential approach is not for the processing of grievances related to the validity of the statements and examinations performed in the requesting State. Beyond that the alleged nothing about it at the time of the hearing held to debate fs. 372/376, so it should be noted that such grievances have been introduced late (conf cause L.321 XXXVII, "Linardi Martínez, Walter J. s / extradition [Uruguay]," resolved on 8/8/2002 and appointments ) - the procedure is subject to extradition requests is not a trial against the accused in its own right, and it will not fit in other discussions relating to the required identity and compliance with the requirements of the laws and applicable treaties (conf failures and appointments 324:1694).
6. Nor appropriate to treat the alleged violation of the principle ne bis in idem. Beyond this court has stated that there is no identity between the offense of transportation of drugs and the conspiracy (conf "Arla Pita, consid. 10-Fault 325:2777 -), the grievance lacks sufficient foundation because the appellants failed to rebut the arguments taken into account by the lower court to dismiss (conf failures 320:1775 and 322:486, among others, and see fs. 384/384 row. and 404/415).
7. That, considering particularly valuable to promote international judicial cooperation in the field, corresponds to result in delivery of the required temporary and property and evidence requested (arts. 13 and 15 of the Extradition Treaty with the United States of America) in order coordinate the processing in both countries under conventional and customary rules applicable in order to achieve a full trial, without duplication or impairments, for which Argentine judges are empowered by their own jurisdiction, without prejudice, where appropriate, of the relevant authorizations that would require this Court.
So, after hearing the prosecutor, declared from the ordinary appeal filed on fs. 379/386 and resolves to confirm the point I from the original ruling and repeal Section II to the extent arising from the consid. 7. Presents notified and refunded.
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