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EFS Informe Especial
Diplomatic Missions and the Labor Court of Brazil - a case of violation of the Vienna Convention and the Principle of Reciprocity between nations

Those who were at the Labor Court in Brasilia on 8 November 2010 witnessed one of the most picturesque events of our Brazilian version of Cervantes. The bailiff called for the presence of two embassies from foreign countries, which are being trialed, to come into the courtrooms for the hearings of two different trials.

The episode was so insane that one could have taken the corridors of the Brazilian court for the corridors of the United Nations, or maybe the WTO or the Hague Court, which are surely the courts that are empowered to adjudicate sentences or decisions against the international representation from foreign countries or the actions and decisions of their diplomats under the orders from their heads of state.

But this was not the UN, it was some kind of juridical nonsense going on in Brasilia. It resembles the story of Don Quixote, tilting at windmills that in his mind were giant enemies. In this case the Brazilian Labor Court was plagiarizing Cervantes as it declared itself competent to judge international issues. The Brazilian Labour Court admitted the possibility of absurd lawsuits against "Embassies", treating them as if they were foreign companies and not of Diplomatic Representations from other countries, represented by Embassies and Consulates established within the boundaries of the Federative Republic of Brazil. The existence of diplomatic missions is regulated by the Vienna Convention, an international agreement fully accepted by our country through since its sanction by the President Costa e Silva.

There is no surprise in the fact that the Brazilian Labor Courts place themselves even above God, above the Brazilian Constitution, above the Brazilian Civil Code, above the Brazilian tax code, and now above the UN, the Vienna Convention and the basis of Public International Law. This is a proof of what I have written on my previous article, this court is out of the justice, it is an outlaw court.

The position of this court is unrealistic because the national and international legal relationships are governed by a set of internal and external acts, bills and treaties that in a proportional manner, observing the hierarchical order of each of these treaties, bills and acts.

The general rule is that the Federal Constitution and the international treaties and agreements are principles at a level above all other rules. In this sence the whole brazilian legislations, the Constitutional Amendments, Supplementary Laws, Ordinary Laws Federal and State, Provisional Measures, decrees, resolutions, among other rules are below the “principles of law” stated it the Federal Constitution and international agreements, such as treaties and declarations of universal rights.

The State Law provides societies with "legal, political and social order" because it synthesizes, in the texts of the law, the wishes and demands of a civilization.

Art. 4th of the Federal Constitution, which refers to the international relations, alongside the Vienna Convention, determines the immunity of diplomatic missions based within the borders of Brazil, acknowledged by the Brazilian authorities as “foreign territory”, which includes the headquarters of embassies and consulates, as well as the official vehicle of countries under their service. For this reason, the Brazilian police and Brazilian courts, and even the Ministry of Labor, have no jurisdiction inside the headquarters of these consulates and embassies.

Therefore, a contract or problems of any kind occurring within an embassy or consulate, are exclusively under the jurisdiction of the country that originated the diplomatic representation. No Brazilian bailiff or magistrate has the power to give orders and take decisions in foreign territory,

A Brazilian judge cannot trial, notify or bring to court a foreign country or its representation in Brazil. This can only be done if mediated by international organizations to which this duty has been legally attributed, under the agreement of both countries, as it occurs at the UN, Hague Court and even WTO.

Recently Brazil has relied on this immunity to deny or accept the repatriation of an Italian citizen called Cezare Batistti, the justice of his country had sentenced him to life imprisonment for having been the author of no more than four murders.

Same argument was also used by Brazilian diplomats when they granted political asylum to former President of Honduras, Manuel Zelaya, invoking the immunity of the territory of the Brazilian diplomatic mission to deny the search and seizure of the assailed, by order of the courts of law in Honduras.

Thus, there is no other way to interpret - but as an international incident of breach of the Principle of Reciprocity and as a violation of the Vienna Convention. The absurd interference by the Labor Court of Brazil in businesses and affairs conducted within Embassies and Consulates from abroad with the intention of enforcing bizarre labor claims, requests and subpoenas from the Brazilian Ministry of Labor against foreign countries, because of agreements established within the territories from these labor countries.

For this reason, while causing an international incident, the Brazilian Justice and the Ministry of Labor, through its own initiatives, demonstrates how urgently Brazil must extinguish Labor Courts that are separate from the rest of the Brazilian Courts of Law, integrate the labor magistrates and labor general attorneys to the “real” Brazilian Courts of Law, alongside Law Judges and Federal Judges who have a wide experience in applying the law in many different situations and not exclusively from the point of view of the Brazilian labor legislation named after the acronym “CLT”, that goes after “consolidation of labor rules”.

This is the only way to avoid the blunders that the Labor Courts have perpetrated. Among these grotesque mistakes are decisions to “un-establish” private societies formed by physicians, lawyers, engineers or in the case of other professional societies governed by the Civil Code, to declare that minority partners of these societies are in fact “employees” from these societies.

The most insensitive mistake: receiving and proceeding labor lawsuits against diplomatic missions that are not even legal entities, but representatives of a country - with its own courts and justice. It's like admitting the possibility of a lawsuit against Petrobras, for electoral crimes, in an Electoral Court and hearing Mr. Sergio Gabrieli (the president of Petrobras), and not the legal representative of the company, the company`s lawyer.

God saves this nation!

Édison Freitas de Siqueira
www.edisonsiqueira.com.br
artigos_efs@edisonsiqueira.com.br

 

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