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Denied appeal on indemnity for vessel sunk in World War II

Luiz Fux, Justice of the Brazilian Federal Supreme Court (STF), dismissed an appeal seeking to bring to the Court an analysis of a claim for compensation to the Federal Republic of Germany for the wreck of a fishing vessel in the Brazilian coast in 1943. The rapporteur's decision was taken in the extraordinary appeal with internal appeal (ARE) 953656, filed in the case files filed by a descendant of the crew of the vessel. In addition to citing procedural obstacles to deprive the appeal, the minister highlighted the immunity from jurisdiction, since the hypothesis comprises an act of war, and it is not for the Brazilian justice to assess the claim of compensation against the foreign State.

According to the documents, the "Changri-Lá" boat sank after being torpedoed by a German submarine on the coast of Cabo Frio (RJ) in July of 1943, but the decision on the causes of the shipwreck, defined in a judgment of the Maritime Tribunal (linked to the navy command), was issued only in 2001. The case, filed since 1944, was reopened before that court because of the appearance of new documents proving the attack.
Act of empire

In the extraordinary appeal with internal appeal, the appellant questions the decision of the Superior Court of Justice (STJ), which rejected the Supreme Court's decision to proceed. According to the Superior Court of Justice, in case of warfare, immunity from jurisdiction is absolute. Justice Luiz Fux made in his decision a historic of the understanding regarding immunity from jurisdiction, part of a position in which is composed of absolute immunity to arrive at a more contemporary reading that relativize this understanding, differentiate acts of management and acts of Empire.

The management act would be, for example, the hiring of an official in an embassy, and an act of empire, an offense committed by a State in the territory of another State in the context of a warlike conflict. "It is to say: only in relation to the acts of management can we admit the relativization of immunity from jurisdiction, a provision that is not possible in relation to acts of empire, which arise from the direct exercise of state sovereignty," said the minister.

The minister also referred to the understanding of the International Court of Justice (ICJ) in 2012, which accepted the recommendation of the Federal Republic of Germany concerning the decision of the Italian authorities. In this case, it was recognized as a breach of immunity from jurisdiction.

"According to the evolution of the scope of the immunity of jurisdiction already proposed, the acts of war practiced by a foreign State during the period of war correspond to acts of empire, arising from the exercise of its exclusive sovereign power," says a decision by Luiz Fux. According to him, since there is no waiver of such prerogative on the part of the requested nation (Germany), immunity from jurisdiction is implied, preventing the submission of the foreign State to the Brazilian justice.
Formal issues

The rapporteur also explained that there are formal obstacles to non-appeal, citing, among them, the lack of general repercussions of the matter on the principles of ample defense and due process when debated from the infraconstitutional point of view, as established by the STF Virtual Plenary in ARE 748371; The alleged offense to the Federal Constitution occurs indirectly, which makes it impossible to assess the case in extraordinary appeal; and the claim of the appellant requires the analysis of the factual and evidential context of the case, a situation that attracts the incidence of STF's Summary 279.

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