Dino’s decision reinforces sovereignty in the face of the magnitsky law

For experts, the Supreme has consolidated the role of guardian of sovereignty in the face of attempts to impose unilateral sanctions on Brazil

A recent decision by the minister Flávio Dinofrom the Federal Supreme Court (STF), can redefine the way Brazil deals with sanctions and restrictions imposed by foreign laws, such as the call Lei Magnitskyapproved in the United States to punish individuals and companies accused of corruption and human rights violations.

Na ADPF 1,178judged on Monday (18), Dino was clear in saying that Executive orders, decrees, laws or judicial decisions from other countries do not have effects in the Brazilian territory without provision in international treaty or approval by the Superior Court of Justice (STJ).

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Although it has not expressly mentioned the magnitsky law, the vote is full of unilateral measures such as blockages of assets and restrictions on financial transactions. In practice, the possibility of the STF consolidates itself as an institutional barrier against the automatic application of this type of international sanction in Brazil.

The case under analysis

The action was proposed by Brazilian Mining Institute (IBRAM) against practices adopted by municipalities of Minas Gerais, Espírito Santo and Bahia After the environmental disasters of Mariana and Brumadinho. City halls hired foreign offices to file actions in international cuts in search of financial reparations.

For Flávio Dino, this conduct goes beyond the constitutional limits. According to him, municipalities are autonomous but not sovereignsand therefore do not have the competence to act as if they were subjects of international law. “To act as if equipped with international personality is to violate the federative pact and pay attention against national sovereignty,” said the minister.

CENTRAL POINTS OF THE DECISION

In the vote, the rapporteur declared ineffective in national territory The precautionary measure granted by the English court to Brazilian municipalities. Also fixed rules for future situations:

• Foreign judgments will only be valid in Brazil after judicial approval;
• States and municipalities are prohibited from proposing new actions in international cuts;
• Financial transactions, asset blockages and international transfers are dependent on STF authorization.

In addition, Dino determined that the decision be communicated to Banco Centralhas Febraban (Brazilian Federation of Banks), CNF (National Confederation of Financial Institutions) and to CNseg (National Confederation of Insurers), to prevent Brazilian financial institutions from complying with orders from outside without the approval of the Supreme Court.

Economic risk and successful contracts

The minister also drew attention to Success contracts signed with foreign officeswhich provided high percentages of fees. According to Dino, this model could impose expressive losses to the purse and even the victims of disasterswhich reinforces the need for control by the Brazilian justice system.

Sovereignty in the foreground

Dino’s vote reinforced constitutional principles, such as the National sovereignty (art. 1, I, of the Constitution) and Equality between the States (art. 4, V, of the Constitution).

The minister cited opinions from former STF minister Ellen Gracie and the teacher Daniel Sarmento to remember that, in international law, the understanding that “Among the equals there is no empire” (par in varem non habet imperium). That is, submitting Brazil to foreign orders without institutional mediation would be to violate this logic.

He also evoked the Article 17 of the Law of Introduction to the Rules of Brazilian Law (LINDB)which determines:

“The laws, acts and sentences from another country, as well as any statements of will, will not be effective in Brazil when they offend national sovereignty, public order and good morals.”

Legal hypotheses for the application of foreign acts in Brazil

In Brazil, the rule is clear: acts from foreign states have no automatic effect on national territory. This includes laws, decrees, executive orders, administrative decisions and even court judgments. For any external determination to be complied with internally, it is necessary to observe specific conditions provided for in the Constitution, the Procedural Legislation and in international treaties.

One of the main forms of validation is the Homologation of foreign judgments by the Superior Court of Justice (STJ). According to article 105, I, item I, of the Federal Constitution, it is up to the STJ to verify that the foreign decision meets the validity requirements, such as the regular citation of the parties and the absence of violation of public order. Without this procedure – detailed in articles 960 to 965 of the Code of Civil Procedure (CPC) – a sentence delivered abroad cannot have legal effects in Brazil.

Another hypothesis is the international legal cooperationprovided for in articles 26 and 27 of the CPC. This mechanism occurs through instruments such as Rogatory Letterswhich allow the practice of procedural acts in Brazilian territory, and mutual assistancealready signed by Brazil with several countries. The Constitution, in its article 4, item IX, reinforces the foundation of this practice by establishing cooperation between peoples as a principle for the progress of humanity.

In addition, foreign acts can become effective when incorporated into the Brazilian legal system through International Treaties. For this, the agreement needs to be approved by the National Congress (Art. 49, I, CF), ratified by President of the Republic and promulgated by Presidential Decree. In cases involving human rightsthese treaties can even reach constitutional statusprovided they approved in two shifts by three fifths of the votes of each Congress House, according to article 5, paragraph 3 of the Constitution.

Finally, Brazilian law establishes a safeguardprovided for in article 17 Introduction Law to Brazilian Law Standards (Lindb). The device determines that laws, acts and sentences from other countries will not be effective in Brazil when they violate national sovereignty, public order or morals. In other words, even if there is judicial approval or instruments of international cooperation, the application of foreign decisions will only be valid if constitutional principles of the country.

This combination of standards and restrictions makes it clear that Brazil maintains sovereignty about the execution of foreign legal actsensuring that measures such as international sanctions or assets blockages can only take effect in the country within well -defined legal and institutional criteria.

Reflexes on the Magnitsky Law

Minister Flávio Dino’s decision on the STF makes it clear that foreign standards cannot have automatic effect on people or companies located in Brazilcreating a direct obstacle to the eventual application of Lei Magnitsky No country.

In practice, that means that unilateral sanctionsas the blockade of assets of Brazilian companies by determining authorities from other countries, do not produce internal effects without the authorization of the national judiciary. Any such measure would depend on EXPRESS DELIBERATION OF THE STF or from prediction in an international treaty incorporated into the Brazilian legal system.

Outside the national territory, however, the restrictions are valid, such as the freezing values ​​in foreign banks your a prohibition of entry into certain countries. The reach of the Supreme, therefore, is limited to Brazilian jurisdiction.

Experts point out that the decision reinforces the STF role as guardian of national sovereigntyespecially in a scenario of increasing use of unilateral international sanctions. By setting clear limits, the Court seeks protect the internal legal systempreventing Brazilian states, municipalities or companies from being subject to external impositions without constitutional support.

Minister Dino’s understanding shows the importance of respecting principles of sovereignty and autonomyreaffirming that, in Brazil, the application of international standards should always go through the sieve of the national legal system.

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