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STF will decide if the Brazilian Judiciary can judge acts of war of another country committed in national territory

Friday, May 19, 2017

The Brazilian Federal Supreme Court (STF) will decide if the Brazilian Judiciary can judge foreign sovereign State for acts of war committed within Brazilian borders. The extent of immunity from foreign State jurisdiction in relation to an act of empire - which results from the direct exercise of state sovereignty - offensive to the international right of the human person is the subject nº 944 of General Repercussion in the Supreme, and will be discussed in the Extraordinary Appeal with internal appeal (ARE) 954858, by report of the Justice Edson Fachin.

The concrete case treats an action for compensation of material and moral damages, the action was by authorship of descendants of a fishing boat crewman killed as a result of a german submarine attack on the brazilian territorial sea, In the proximities of the Costa de Cabo Frio, in July 1943, during World War II.

In a manifestation in the Virtual Plenary, Justice Edson Fachin explained that in Brazil the matter is governed by customary law, given that the country has not been linked to the United Nations Convention on the Immunity of Jurisdiction of States and their Properties of 2004 or treaty of the same nature."In this respect, the advent of the 1988 Constitution represented a mark in the change in the jurisprudence of the Supreme Court in order to encompass the division of the sovereign State's achievements into acts of management and empire, being the first susceptible of being known by the brazilian Judicial Power ", said.

The rapporteur also pointed out that the controversy is unprecedented in the Court. "The constitutional nature of the matter is evident because it involves issues of the Brazilian State of Law in relation to international society," he said.

According to Justice Fachin, the general repercussion of the matter is justified from the legal point of view by the unprecedented controversy in the Court regarding the application of immunity. In the social sphere for the accountability of States for acts that threaten the dignity of the human person and, in the political field, for the divergence of two values to which the Federative Republic of Brazil has committed itself to follow in international relations: The prevalence of human rights and equality between States.

Read more: STF vai decidir se Justiça brasileira pode julgar atos de guerra de outro país cometidos em território nacional

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