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Judgment No. 238 – 2014 (IT. Const. Ct.)

Published online by Cambridge University Press:  20 January 2017

Alessandro Chechi
Alessandro Chechi*
Affiliation:
Alessandro Chechi (JD University of Siena, LLM University College London, PhD European University Institute) is a post-doctoral researcher at the faculty of law of the University of Geneva
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On October 22, 2014, the Italian Constitutional Court rendered a decision on the constitutional legitimacy of certain domestic norms that required Italy’s compliance with the rule on state immunity sanctioned by the International Court of Justice (ICJ) with the Judgment Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening). The Constitutional Court declared that the international customary obligations on state immunity from jurisdiction can be applied automatically within the Italian legal order only as long as they are in conformity with the fundamental rights contained in the Constitution.

Information

Type
International Legal Materials
Information
International Legal Materials , Volume 54 , Issue 3 , June 2015, pp. 471 - 506
Copyright
Copyright © American Society of International Law 2015

Footnotes

* This text was reproduced and reformatted from the text available at the Italian Constitutional Court website (visited May 12, 2015), http://www.diritticomparati.it/2014/10/sentenza-n-238-anno-2014-repubblica-italiana-in-nome-del-popolo-italianola-corte-costituzionale-composta-dai-signori.html.

1 Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment, 2012 I.C.J. Rep. 99 (Feb. 3). This case was brought by Germany against Italy as a reaction to several rulings (starting with Ferrini v. Federal Republic of Germany, Cass., sez. un., 11 marzo 2004, n. 5044, 87 Rivista Di Diritto Internazionale [RDI] 2004 (It.), [hereinafter Ferrini]) whereby Italian courts held that Germany could not rely on state immunity as a bar to actions for damages in respect of violations of human rights and humanitarian law committed by German armed forces on Italian territory during the Second World War.

2 Simoncioni and Others v. Germany and Presidency of the Council of Ministers, Corte. Const., 22 ottobre 2014, n. 238 (It.),http://www.diritticomparati.it/2014/10/sentenza-n-238-anno-2014-repubblica-italiana-in-nome-del-popolo-italiano-lacorte-costituzionale-composta-dai-signori.html, [hereinafter Judgment No. 238].

3 The ICJ found that Italy had violated the international custom on state immunity vis-à-vis Germany because Italian courts: (i) exercised jurisdiction in tort proceedings against Germany; (ii) adopted measures of constraint against Villa Vigoni (a German property situated in North of Italy used for non-commercial purposes); and (iii) declared enforceable in Italy the judgments adopted by Greek courts against Germany for the war crimes committed by the Nazi regime in Greece during the Second World War.

4 See e.g., 4 Manfredi v. Repubblica federale di Germania, Trib. Firenze, 28 marzo 2012, 95 RDI 583 (2012); Repubblica federale di Germania v. De Guglielmo, App. Torino, 3 maggio 2012; Criminal Proceedings Against Albers, Cass., sez. un. pen., 9 agosto 2012, n. 32139, 95 RDI 1196 (2012), ILDC 1921 (in Ital.).

5 L. n. 848/1957 (It.) (authorizing the implementation within the Italian legal order of the UN Charter).

6 L. n. 5/2013 (It.) (on the ratification of the United Nations Convention on Jurisdictional Immunities of States and Their Property, Dec. 2, 2004, 44 I.L.M. 801 (not yet in force)). This act contains two provisions to give application to the ICJ Judgment Jurisdictional Immunities: Article 3(1) compels Italian judges to decline jurisdiction in any cases where the ICJ has excluded the possibility of subjecting specific conduct of a foreign State to civil jurisdiction; Article 3(2) provides that a final judgment could be challenged when it clashed with the ICJ judgment, even when that domestic decision preceded the relevant ruling of the ICJ.

7 Judgment No. 238, supra note 2, ¶¶ 3, 6.

8 Id. ¶ 3.1.

9 Id. ¶ 3.4.

10 Id. ¶ 3.2. On the “counter-limits” doctrine see Fulvio Maria, Palombino, Italy’s Compliance with ICJ Decisions vs. Constitutional Guarantees: Does the “Counter-Limits” Doctrine Matter? , 22 It. Y.B. Int’l L. 185, 187–200 (2012).

11 Judgment No. 238, supra note 2, ¶. 3.5.

12 Id. ¶¶ 4, 4.1.

13 Id. ¶ 5.

14 Yassin, Abdullah Kadi and Al, Barakaat International Foundation v Council of the European Union and Commission of the European Communities, Joined cases C-402/05 P and C-415/05 P; [2008] ECR I-06351. The Court depicted Kadi as an authoritative example of noncompliance with international law aimed at upholding the principle of effective judicial protection.

15 In this respect it is worth mentioning two decisions almost contemporaneous to the Constitutional Court’s judgment: Jones and others v. United Kingdom, 2014 Eur. Ct. H.R., http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-140005; Kazemi Estate v. Islamic Republic of Iran, 2014 S.C.C. 62 (Can.). These two courts dealt with the alleged clash between the right of access to a court and the principle of sovereign immunity and concluded that the ICJ Judgment in Jurisdictional Immunities still represented good law.

16 Ferrini, supra note 1.