Community law ; Community law and international law - Non-contractual liability of the State - Application for compensation for losses sustained by the civilian population due to actions carried out by the German occupying forces - Forced workers - International crimes - Italian courts

Cassazione penale 2004 p.2986-2994

Giustizia civile 2004 I p.1191-1200

Il Consiglio di Stato 2004 II p.567-568 (résumé)

Il massimario del Foro italiano 2004 Col.349-350 (résumé)

Rivista della cooperazione giuridica internazionale 2004 p.191-199

Giurisprudenza italiana 2005 p.250-254

Rivista di diritto internazionale privato e processuale 2005 p.407-418

Il Foro italiano 2007 I Col.936-945

In a judgement of 11 March 2004, the Court of Cassation quashed a ruling by the Florence Court of Appeal rejecting a claim for compensation lodged by an Italian national against Germany in respect of injuries sustained between 1944 and 1945 whilst in captivity as a forced labourer. The Court of Appeal had rejected the appellant's claim, finding that the acts in question constituted acts performed by a foreign State exercising its sovereign powers which, in application of the principle of relative immunity, fell outside the jurisdiction of the Italian court. Firstly, the Court of Cassation set aside application of the Brussels Convention stating that in line with current European Court of Justice case law, the Convention was not applicable in cases where the injurious act in question had been committed by a government acting as a public authority. The Court went on to highlight that in line with its own case law, the Italian courts could not exercise their jurisdiction where acts by foreign States constituted the latter acting immediately and directly as a public authority, even where such acts may potentially affect an individual's fundamental rights (see Court of Cassation, 3 August 2000, no. 530). Nevertheless, after examining the question of whether immunity from jurisdiction in respect of iure imperii acts could be permitted where a crime had been committed under international law, the Court found that they could not. It stated that under international law, subjecting civilians to forced labour should be considered as a war crime and, consequently, as a crime under international law. This principle is based on United Nations General Assembly Resolution 95(1) adopted on 11 December 1946 and has since been reaffirmed on several occasions thereby resulting in it being considered a customary rule. In this regard, the Court stated

that acts considered crimes under international law constituted an especially serious violation of the fundamental rights safeguarded by mandatory regulations from which States were not permitted to derogate. Said regulations could, where appropriate, result in rules on States' immunity being set aside. The Court therefore held that granting immunity from jurisdiction to States responsible for committing crimes under international law such as those in the case in question would constitute a clear breach of the relevant rules of international law. The Court acknowledged that this solution could be considered as going a step further than the traditional distinction between jure imperii and jure gestionis acts, however, in the Court's view it was a change which had already been reaffirmed on several occasions. In this respect, on the one hand the Court recalled that several States – such as the United Kingdom, the United States, Canada and Australia – prohibited immunity from jurisdiction in the case of acts committed on national territory and furthermore that this rule had been established in Article 12 of the Draft articles on jurisdictional immunities of States and their property. On the other, the Court highlighted that in recent years, even States which rigorously apply the rule of absolute immunity – such as the United States – have prohibited foreign States from being granted immunity in cases concerning crimes of an especially serious nature. In conclusion, the Court of Cassation acknowledged the jurisdiction of the Italian court and referred the case back to the court of first instance.