Re Núñez, Bernaldes and Troslega
| Jurisdicción | Perú |
| Número de expediente | 142 |
| Fecha | 19 Septiembre 1934 |
| Emisor | Corte Suprema (Perú) |
Extradition — Conditions of — Extradition of Nationals.
The Facts.—Chile asked Peru to extradite Núñez, who claimed that he was of Peruvian nationality, and two Spaniards, for the crime of forgery. The Fiscal of the Supreme Court reported1 as follows:
“The crime in question is regarded as such by the laws of both countries; in both it is punished with more than one year's imprisonment; and the documents transmitted show that an order of arrest has been issued against the criminals named. Consequently, all the requirements set up by Article 2 of the Extradition Treaty with the Republic of Chile of November 5, 1932, are complied with and extradition is the proper course. The same result follows from the provisions of the Code of Private International Law signed in the Sixth International Conference of Havana1 and ratified by both countries. Further support in favour of extradition is found in the principles of international reciprocity. …
“It is true that Article 4 of the Treaty cited provides that the surrender of a national of the requested State is not obligatory, that this is confirmed by the Code referred to, and that therefore the extradition of Núñez (who says he is Peruvian) could be refused. However, such refusal is not proper in the case under consideration. On the record that nationality is not proved. The Republic of Chile invokes reciprocity and there is pending another petition of Peru, asking Chile for the surrender of a criminal held there, who has defrauded its fiscal interests. It is preferable that the proceedings begun in that republic for a crime there committed should be continued, rather than a new proceeding for its trial opened here.”
On reference to the Supreme Court,
Held: that extradition should be granted if the Government so desired.2 The Court approved the opinion of the Fiscal, and said: “The documents transmitted show that against the said accused there has been issued an order of arrest; the crime for which the prosecution is brought is considered such by the laws of both countries; the request is formulated according to the rules of the Law of October 23, 1888. There have thus been fulfilled the requirements for extradition as laid down in the pertinent rules of the Code of
Private International Law. … In addition, there apply the principles of international reciprocity.”11 For the nature of the report of the Fiscal see Annual Digest, 1919–1922, p. 107, footnote.
1 The Bustamante Code, annexed to the Convention on Private International Law adopted at the Sixth International Conference of American States (Havana, 1928): printed in L.N.T.S., vol. 86, p. 120, and Hudson, International Legislation, IV (1931), p. 2283.
2 Code of Criminal Procedure of Peru, 1920, Article 339 of which provides: “Whenever a foreign Government asks for the extradition of an offender, the Minister of Foreign Affairs, through the Minister of Justice, shall send the request to the Supreme Court, so that one of its chambers may decide whether according to our national laws, treaties, and the principles of reciprocity or comity, extradition should take place”.
1 In the case of Panay, decided on November 9, 1932 (28 Anales Judiciales 214), the Supreme Court held it proper that the Peruvian Government should request extradition of a fugitive from the Bolivian Government. The crime in question, embezzlement, carried a penalty of not more than six years and not less than one month's imprisonment under Peruvian law. The Court said: “Consequently, it is included within Article 5 of the Treaty of Penal Law decided on at the Bolivarian Congress, which provides that the punishment for an extraditable offence must exceed 6 months' imprisonment”. In the case of Terrazas and Lusichi, decided on July 25, 1933 (29 ibid. 155), the Court held that Peru should not request extradition from Bolivia under this Treaty; under Article 20, paragraph 20, of the Treaty infliction of wounds which produced death or incurable mental or bodily infirmity was made an extraditable offence, and the wounding which was the grounds of prosecution only incapacitated the victim for 60 days.
Extradition was granted, since the terms of the relevant treaties were fully complied with, in the cases of Gutierrez, November 13, 1931 (27 ibid. 369); Bosset, March 31, 1932 (28 ibid. 291); and Cordova, November 9, 1933 (29 ibid. 358).
