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Simoncioni v. Germany

Published online by Cambridge University Press:  20 January 2017

Riccardo Pavoni
Riccardo Pavoni*
Affiliation:
University of Siena
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Extract

With Judgment No. 238/2014, the Italian Constitutional Court (hereinafter Court) quashed the Italian legislation setting out the obligation to comply with the sections of the 2012 decision of the International Court of Justice (ICJ) in Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening) (Jurisdictional Immunities or Germany v. Italy) that uphold the rule of sovereign immunity with respect to compensation claims in Italian courts based on grave breaches of human rights, including—in the first place—the commission of war crimes and crimes against humanity. The Court found the legislation to be incompatible with Articles 2 and 24 of the Italian Constitution, which secure the protection of inviolable human rights and the right of access to justice (operative paras. 1, 2).

Keywords

Implementation of ICJ decisionssovereign immunityinternational crimesvictims’ right to judicial protectionfundamental principles of national constitutionscustomary international law
Type
International Decisions
Information
American Journal of International Law , Volume 109 , Issue 2 , April 2015 , pp. 400 - 406
Copyright
Copyright © American Society of International Law 2015

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References

1 Simoncioni v. Repubblica Federale di Germania, Corte cost., 22 ottobre 2014, n. 238, Gazzetta Ufficiale [G.U.] (ser. spec.) n. 45, 29 ottobre 2014, I, 1 [hereinafter Judgment], available at http://www.gazzettaufficiale.it, translated at http://www.cortecostituzionale.it/documenti/download/doc/recent_judgments/S238_2013_en.pdf. For an early account of the case, see Int’l L. Domestic Cts. [ILDC] 2237 (reported by Alessandro Chechi). Citations to the judgment below refer to the paragraphs in its section on legal considerations, Considerato in diritto. Translations from the Italian are by the author.

2 Jurisdictional Immunities of the State (Ger. v. It.; Greece intervening), 2012 ICJ Rep. 99 (Feb. 3) [hereinafter Germany v. Italy] (reported by Alexander Orakhelashvili at 106 AJIL 609 (2012)).

3 The declaration under Article 36(2) of the ICJ Statute was deposited by the Italian government on November 25, 2014. See Declarations Recognizing the Jurisdiction of the Court as Compulsory, at http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3.

4 Simoncioni v. Repubblica Federale di Germania, Trib. Firenze, 21 gennaio 2014, G.U. (ser. speciale) n. 23, 28 maggio 2014, I, 82; Alessi v. Repubblica Federale di Germania, Trib. Firenze, 21 gennaio 2014, id. at 91; Bergamini v. Repubblica Federale di Germania, Trib. Firenze, 21 gennaio 2014, id., n. 29, 9 luglio 2014, I, 43.

5 Germany v. Italy, supra note 2, operative para. 139(1). By a majority of 14-1, the ICJ also found that Italy had violated Germany’s right to immunity from enforcement by taking measures of constraint against German property used for governmental purposes, id., operative para. 139(2), as well as Germany’s right to jurisdictional immunity by declaring enforceable in Italy the decisions of the Greek courts that had awarded damages and costs against Germany in the proceedings involving the WWII Distomo massacre, id., operative para. 139(3). The relevant Greek case is Prefecture of Voiotia v. Germany, Case No. 137/1997 (Livadeia Ct. 1st Instance Oct. 30, 1997) (reported by Ilias Bantekas at 92 AJIL 765 (1998)), on appeal, Case No. 11/2000 (Sup. Ct. May 4, 2000), ILDC 287 (reported by Maria Gavouneli & Ilias Bantekas at 95 AJIL 198 (2001)).

6 Germany v. Italy, supra note 2, operative para. 139(4).

7 Repubblica Federale di Germania v. De Guglielmi, App. Torino, 14 maggio 2012, n. 941, ILDC 1905; Criminal Proceedings Against Albers, Cass., sez. I pen., 9 agosto 2012, n. 32139, ILDC 1921 (reported by Filippo Fontanelli at 107 AJIL 632 (2013)); Frascà v. Repubblica Federale di Germania, Cass., sez. un. civ., 21 febbraio 2013, n. 4284, ILDC 1998; Ferrini (Oriella) v. Repubblica Federale di Germania, Cass., sez. un. civ., 18 aprile 2013, n. 9412. The Tribunal of Florence itself had been particularly active in dismissing applications filed against Germany in the aftermath ofGermany v. Italy.See, e.g., Manfredi v. Repubblica Federale di Germania, Trib. Firenze 28 marzo 2012, 95 Rivista di diritto internazionale [RDI] 583 (2012).

8 Legge 14 gennaio 2013, n. 5, Art. 3 (authorizing accession to United Nations Convention on Jurisdictional Immunities of States and Their Property, GA Res. 59/38, annex (Dec. 2, 2004) (not yet in force)).

9 On the same date as the Florence Tribunal published its orders referring the cases here in question to the Constitutional Court, the Italian Court of Cassation handed down two decisions, which, by unconditionally complying with the 2012 ICJ judgment and refusing constitutional references, ended some of the most well-known WWII-related lawsuits against Germany instituted in Italy. See Repubblica Federale di Germania v. Ferrini, Cass., sez. un. civ., 21 gennaio 2014, n. 1136, ILDC 2724; Allasio v. Repubblica Federale di Germania, Cass., sez. un. civ., 21 gennaio 2014, n. 1137. Judgment No. 1136/2014 relates to the proceedings for deportation and forced labor brought in 1998 by Luigi Ferrini, which resulted in the 2004 landmark decision in Ferrini v. Repubblica Federale di Germania, Cass., sez. un. civ., 11 marzo 2004, n. 5044, 87 RDI 539 (2004) (reported by andrea Bianchi at 99 AJIL 242 (2005)) (after Ferrini passed away, the lawsuit was continued by his heirs). Judgment No. 1137/2014 refers to a collective claim advanced by several victims of Nazi-era deportation and subjection to slave labor (or their heirs). For the Court’s original order asserting jurisdiction in this case, see Repubblica Federale di Germania v. Mantelli, Cass., sez. un. civ., 29 maggio 2008, n. 14201, ILDC 1037 (reported by Carlo Focarelli at 103 AJIL 122 (2009)).

10 Customary rules are given effect in the Italian legal system by the first sentence of Article 10 of the Constitution, which reads: “The Italian legal order conforms to the generally recognized norms of international law.”

11 Russel v. S.r.l. Immobiliare Soblim, Corte cost., 18 giugno 1979, n. 48, G.U. (ser. speciale) n. 175, 27 giugno 1979 (ill-foundedness of a question of constitutionality involving the diplomatic immunity of a military attaché of the Canadian Embassy in Rome).

12 This perspective may also explain the Court’s citation (para. 3.4) to the landmark 2008 Kadi judgment of the Court of Justice of the European Union (ECJ).See Joined Cases C-402/05P & C-415/05P, Kadiv.Council, 2008 ECR I-6351 (reported by Miša Zgonec-Rožej at 103 AJIL 305 (2009)). For one thing, the Court’s methodology largely echoed that of the ECJ in Kadi (exclusive power to Review “domestic” measures implementing international law acts, not the latter as such). But most important, the same methodology did not prevent the ECJ from giving weight to the absence of adequate protection in the UN system for the rights of individuals blacklisted for their alleged involvement in terrorist activities. See id., paras. 320–25.

13 Germany v. Italy, supra note 2, para. 82 (speaking in this connection of “a logical problem”).

14 Id., paras. 93–95.

15 Id., para. 98.

16 Id., para. 60.

17 Id., para. 104.

18 The UN Charter is par excellence one of those treaties pursuing “peace and justice among nations” with respect to which Italy accepts limitations to its sovereignty, as per Article 11 of the Constitution.

19 See text at note 8 supra.

20 Italy, Declaration, United Nations Convention on Jurisdictional Immunities of States and Their Property (May 6, 2013), in Multilateral Treaties Deposited with the Secretary-General, at http://treaties.un.org. Almost identical statements were made by Finland, Norway, and Sweden on becoming parties to the UN Convention. It is regrettable, but unsurprising, that the Court did not prefer to give weight to another part of the Italian declaration, according to which “Italy understands that the Convention will be interpreted and applied in accordance with the principles of international law and, in particular, with the principles concerning the protection of human rights from serious violations.” Id.

21 Germany v. Italy, supra note 2, para. 78.

22 Id., para. 69.

23 See, e.g., Pavoni, Riccardo,An American Anomaly? On the ICJ’s Selective Reading of United States Practice in Jurisdictional Immunities of the State, 2011 Italian Y.B. Int’l L. 143Google Scholar.