The estate has active legitimacy to file an action to request the payment of economic reparation guaranteed by the granting of political amnesty, provided that the date of death of the person granted amnesty is later than the granting of the same.
Disclosure / MJ
With this understanding, the 1st Section of the Superior Court of Justice granted security in favor of the estate of a man who suffered political persecution during the period of the military dictatorship and died after the declaration of amnesty in his favor.
With the condition of amnesty, he acquired the right to receive economic compensation, of an indemnity nature, divided into a installment as arrears and monthly, permanent and continued installment.
The benefit was instituted by Ordinance 2.515/2006 of the Ministry of Justice, but, until the death of the amnesty, in 2019, payment was still pending. After his death, the estate filed a writ of mandamus to claim the amounts.
The Ministry of Justice claimed that the estate would not be a legitimate party to collect, that the writ of mandamus is not the means to obtain the amount and that payment is impossible, because it affronts the so-called “reserve of the possible”.
Reservation of the possible is a German doctrinal construction that, in Brazil, is used to limit the enjoyment of rights to what is economically possible for the State to finance.
Rapporteur at the STJ, Minister Regina Helena Costa pointed out that the legitimacy of the amnesty’s estate varies according to the moment of death. If the death is subsequent to the judgment of the amnesty (2005) and the financial effects of the ordinance, then the retroactive financial effects only represent values incorporated into the amnesty’s assets.
Therefore, compensation is a patrimonial right that can be transferred to heirs or successors. “The estate is a legitimate party to request the payment of this amount, and it is worth noting that the appointment of the executor has been proven”, said Minister Regina Helena Costa.
She also cited the jurisprudence of the Federal Supreme Court according to which there is a net and certain right of political amnesty recipients to receive the past amounts fixed by the amnesty ordinance, which makes the writ of mandamus a skillful instrument to claim this payment from the government.
And he pointed out that the principle of reserving the possible does not apply to the case, as the obligation to pay has already been recognized by a formal act of the Minister of Justice. The court decision, therefore, is limited to determining compliance.
“The possible budget unavailability, if duly proven, although it prevents the immediate payment of the obligation, does not prevent the execution of the judgment through precatory”, concluded the rapporteur. The vote in the 1st Section was unanimous.
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