O oscilar da balança: o processo decisório na extradição de fugitivos nazistas em uma análise histórico-jurídica

Abstract

This thesis aims to analyze and comprehend the decision process of the judges in two extradition cases against Nazi criminals. The first one concerns to Gustav Wagner, a former member of the Schutzstaffel (SS) and second in command on the extermination camp of Sobibor, where he was responsible, directly or indirectly, for the murder of hundreds of thousands of people of Jewish origin. After the second World War Wagner escaped from Europe and arrived in Brazil in the 1950’s, being discovered e suffering extradition requests judged by the Brazilian Supreme Court (STF) between 1978 and 1979, having decided the Court, by majority, against the extradition of the Nazi. The second case concerns Erich Pribke, a former member of the SS that worked in Rome during the second World War and took part on the murder of 335 Italian civilians in what became known as the “Ardeatine Caves massacre”. After being held Priebke fled Europe and started living in Argentina, where he was found in 1994 and had his extradition asked by the Republic of Italy. The extradition request was judged by the Corte Suprema de Justicia de la Nación in 1995 and was granted by the majority of the judges. The similarities between both cases and their different denouements generated the question about the motive that influenced the decision process of the judges. Therefore, a scientific instrument was created to analyze the decision process and the judicial decisions: the historic-juridical practice. According to this practice other elements besides the decision itself must be studied to comprehend the judgments, being them: the judges and their institutions, the parts, the applicable rules and the historical context in which the judgments took place. According to this practice were analyzed the Nazis (Wagner and Priebke), the courts (the Supremo Tribunal Federal and the Corte Suprema de Justicia), the judges, the main juridical rules (legality principle, statute of limitations, international treaties and the genocide crime), besides the judgments and the historical and political context. After the study of these elements proposed by the historical-juridical practice was possible to conclude about the decision process on the cases analyzed. In the Wagner case, personal factors connected to the judges and institutional factors were important, once the Court was in a moment of transition in which Brazil was about to end a dictatorial regime into a democracy, and the decision sent a message of sovereignty of the national laws, the country and also of the STF, which wished to be legitimized as an institution. Also, was highlighted the ideology of the positivism seen in the position of the judges. In the Priebke case, the CSJN also suffered influence of the historical-political context, lining up with the necessity of the executive Power to send an image of a democratic and modern country, in the same way as the first world countries. Thus, the line of juridical thinking utilized by the majority of the judges was in the line of the juridical thinking post-second World War, allowing the extradition of the Nazi. Using the practice created and keeping in mind the elements studied was possible to conclude about the elements that influenced the judges in both cases and comprehend the opposing results in the cases.