Case of fishing boat torpedoed by Nazi submarine: immunity from Germany jurisdiction is removed by Supreme Federal Court

In the last month, the Brazilian Supreme Federal Court (STF)^[1] upheld, by majority, the extraordinary appeal filed by a Brazilian fisherman’s family against the Federal Republic of Germany. They requested compensation for material and non-material damage for the death of a family member in a torpedoing in 1943.

The Court ruled in favor of the Extraordinary Appeal (ARE) 954.858, with general repercussion (Theme 944), regarding the “scope of immunity from the jurisdiction of a foreign State in relation to an act of empire [jus imperii] offensive to international law of the human person”.

According to the report of Minister Edson Fachin, “it is about defining the possibility of submission of a sovereign State to the solution of disputes promoted by the Judiciary Branch of another State, in light of the judicial equality between States in the international society, pursuant to article 4th, V, of the Constitucional Text^[2]”. In the present case, it would be the possibility for the fisherman’s family to file an indemnity action against Germany in the Brazilian Judiciary Branch.

FACTS OF THE CASE

On July 31st, 1943, during World War II, the Nazi submarine U-199, commanded by Hans Werner Kraus, bombed the fishing boat Changri-lá inside the Brazilian territorial sea, near the coast of Cabo Frio – Rio de Janeiro. The attack caused the death of the 10 fishermen on board, among them, Deocleciano Pereira da Costa.

In the year of 2001, the Maritime Court^[3] officially recognized that the cause of the Changri-lá’s shipwreck was the submarine’s torpedoing. At first, the legal case 812/1943 was filed in 1944, given the insufficiency of evidence. However, the case was reopened due to the emergence of new documents brought by historian Elísio Gomes, confirming the attack on the Changri-lá by the U-199.

In 2006, the descendants of the fisherman Deocleciano filed a lawsuit for compensation for material and non-material damage against the Federal Republic of Germany for the death of their family member in the torpedoing. In the first instance, the judgment of the 14th Federal Court of the Judiciary Section of Rio de Janeiro extinguished the lawsuit without resolution of merit due to the declination of competence, pursuant to article 267, VI, of the Brazilian Code of Civil Procedure (1973).

According to article 105, II, c, of the Federal Constitution (1988)^[4], the family members filed an ordinary constitucional appeal to the Superior Court of Justice (STJ)^[5], which was not accepted, since the Court does not hold a foreign State liable for an act of war, pursuant to article 557 of the Brazilian Code of Civil Procedure (1973). 

In this sense, the family filed an extraordinary appeal at the STF, claiming violation of the articles 1st, III; 3rd, IV; 4th, II, IV and V; 5th, II, XXXV and LIV; and 133 of the Federal Constitution (1988)^[6]. However, the Vice-President of the STJ did not recognise the appeal. At last, the party filed an interlocutory appeal against this inadmissibility decision. The following thesis of general repercussion was established by the Court: “the unlawful acts committed by foreign States in violation of human rights do not enjoy immunity from jurisdiction”.

^[1] The Federal Supreme Court (Supremo Tribunal Federal) is the highest court of the Brazilian Judiciary. Learn more: https://international.stj.jus.br/en/Brazilian-Judicial-Branch/Supreme-Federal-Court

^[2] http://www.stf.jus.br/arquivo/cms/legislacaoConstituicao/anexo/brazil_federal_constitution.pdf

^[3] The Maritime Court (Tribunal Marítimo) is an autonomous auxiliary body of the Brazilian Judiciary

^[4] http://www.stf.jus.br/arquivo/cms/legislacaoConstituicao/anexo/brazil_federal_constitution.pdf

^[5] The Superior Court of Justice (Superior Tribunal de Justiça) is the highest court in the common justice of the Brazilian Judiciary. Learn more: https://international.stj.jus.br/en/Brazilian-Judicial-Branch/Superior-courts/Superior-Court-of-Justice

^[6] http://www.stf.jus.br/arquivo/cms/legislacaoConstituicao/anexo/brazil_federal_constitution.pdf

News produced by Izabela saralha Friguetto, intern at BILOS, under the supervision of Prof. Dr. André de Paiva Toledo, Professor at the Dom Helder Law School, Director of BILOS.