Federal Public Prosecutor’s Office opposes an appeal against the STF’s decision on removal of immunity from jurisdiction

On September 23th, 2021, appreciating Theme 944 of the general repercussion^[1], the Supreme Federal Court (STF)^[2] granted the extraordinary appeal filed by a Brazilian fisherman’s family against the Federal Republic of Germany.

In the first instance, the judgment extinguished the lawsuit without resolution of merit due to declination of competence, pursuant to article 267, VI, of the Brazilian Code of Civil Procedure (1973). The Fourth Panel of the Superior Court of Justice (STJ)^[3] denied the appeal against the first instance’s decision, in view that the relativization of immunity from jurisdiction must be granted by that Superior Court only in actions involving civil, commercial or labor relations, therefore, it does not cover acts of empire [jus imperii]. As an act of war constitutes an act of empire [jus imperii], it would not be possible to hold Germany responsible for this action of compensation in the Brazilian Judiciary.

The Court also based its understanding on the precedent of the International Court of Justice, the Case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), which maintained the classical doctrine and reaffirmed that an act of empire is of absolute competence and does not include an exception to the immunity from jurisdiction of the sovereign State.

However, the STF decided for the defeatability of immunity from jurisdiction with regard to acts of empire carried out by a sovereign State, on account of serious crimes that occurred in violation of the international protection of the natural person (article 4th, II and V of the Federal Constitution (1988)^[4]). The Court was based, in short, on the fact that the immunity from jurisdiction of the Brazilian foreign State is governed by customary law.

Furthermore, considering article 6th, b, of the Nuremberg International Military Tribunal Statute on “war crimes” and article 6th of the Covenant on Civil and Political Rights on violation of the human right to life, the STF understood that the acts practiced in periods of war against civilians in the national territory, even if they are acts of empire, are illicit and illegitimate.

The Court also alleged that the ICJ Case is neither erga omnes nor binding, pursuant to Article 59 of the ICJ Statute, as well as it is distinct from the case at hand in that it is based on global reparation.

The STF adopted the understanding of Judge Cançado Trindade, a vote that was defeated in the judgment, in which there is no immunity from jurisdiction “for serious violations of human rights and international humanitarian law, for war crimes and crimes against humanity”.

In this sense, the following thesis was fixed: “the unlawful acts committed by foreign States in violation of human rights do not enjoy immunity from jurisdiction”.

On October, 14th, the Attorney General of the Republic, Augusto Aras, filed motions for clarification to the STF against the judgment on the Theme 944 of the general repercussion. In the appeal, the Federal Public Ministry (MPF) seeks clarification on the parameters of application of the thesis adopted in the judgment of the extraordinary appeal.

The omission of the judgment regarding the restriction of the possibilities of removal from the immunity of jurisdiction established in the thesis stands out. The use of a broad terminology such as “unlawful act” may imply that the possibilities for disregarding immunity from jurisdiction were expanded to hypotheses beyond those expressed in the motivation for the vote or in the international precedents that guided the position of the Minister Rapporteur.

The international precedents and the doctrine used in the vote make the rule of immunity from jurisdiction in very restricted cases more flexible.

In the opinion of Judge Cançado Trindade in the Case of Jurisdictional Immunities of the State, flexibility is restricted to international crimes, always highlighting their serious nature. The Attorney General of the Republic emphasizes that the use of this term is more restrictive than the term “illicit act”.

In view of this, the MPF recommends “the adoption in the fixed thesis of the terminology “international crimes involving serious violations of Human Rights and Humanitarian Law” as an exceptional hypothesis of removal of immunity from jurisdiction, in line with the hypotheses contained in the grounds for the winner vote”. Thus, there is a guarantee of greater security in the application of the exceptional hypothesis, restricting the removal of immunity from jurisdiction only to the possibilities provided for as international crimes, as well as respecting the principles of sovereignty of nations and the rules of Customary Law.

Another omission in the judgment would be the territorial delimitation of the thesis, in which despite appearing in excerpts of the reasoning and in items 3 and 8 of the judgment’s summary, the territorial scope only to offenses committed within Brazilian territory is not included in the fixed thesis. Territorial delimitation is essential in respect of the principles of legal security, sovereignty, non-intervention and equality between States (article 4th, of CF/88).

In this sense, the Attorney General of the Republic proposes the following thesis: “International crimes that involve serious violation of Human Rights and Humanitarian Law, committed in national territory by foreign States, do not enjoy immunity from jurisdiction.”

^[1] The purpose of the general repercussion is to enable the STF to select the extraordinary appeals it will analyze, according to criteria of legal, political, social or economic relevance.

^[2] 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

^[3] 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

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