CC Order 30/2015

On 11 February 2015, the Constitutional Court issued its Order n. 30 of 2015, by means of which it declared the manifest inadmissibility of questions of constitutionality similar to those raised in CC Judgment 238/2014, thereby confirming the jurisprudence established in that landmark decision.

Here follows an English version of Order 30/2015, translated by Alessio Gracis. A pdf version of the translation is also provided here (English translation only) and here (original version and English translation compared).

ORDER No. 30, YEAR 2015

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

Composed of: President: Alessandro CRISCUOLO; Judges: Paolo Maria NAPOLITANO, Giuseppe FRIGO, Paolo GROSSI, Giorgio LATTANZI, Aldo CAROSI, Marta CARTABIA, Mario Rosario MORELLI, Giancarlo CORAGGIO, Giuliano AMATO, Silvana SCIARRA, Daria de PRETIS, Nicolò ZANON,

Delivered the following

ORDER

in the case concerning the constitutionality of the norm created in our legal order by the incorporation of the international custom of immunity of States from the civil jurisdiction of other States as interpreted by the International Court of Justice (ICJ) in its Judgment Germany v. Italy of 3 February 2012; of Article 1 of Law No. 848 of 17 August 1957 (Execution of the Statute of the United Nations, signed in San Francisco on 26 June 1945) and of Article 1 (recte: Article 3) of Law No. 5 of 14 January 2013 (Accession by the Italian Republic to the United Nations Convention on Jurisdictional Immunities of States and their Property, done in New York on 2 December 2004, as well as provisions for the amendment of the domestic legal order), brought by the Tribunal of Florence in the proceedings between D.A. and other and S.J.E. and others, through Order No. 143 of 21 January 2014, and published in the Official Gazette of the Italian Republic No. 38, First Special Series, Year 2014.

Having regard to the appearance of D.A. and other, as well as the intervention of the President of the Council of Ministers;

having heard in the closed session of 11 February 2015 the Judge-Rapporteur Mario Rosario Morelli.

Recalling that the seized Tribunal of Florence has questioned the constitutionality of the norms that would require that the Tribunal deny its jurisdiction (as argued by the defendant, the Federal Republic of Germany) in the proceedings concerning the action for damages brought by the daughters of an Italian citizen who, during World War II, was killed by Third Reich soldiers in an act of retaliation in Italian territory;

[also recalling that], through the Order mentioned above, the Judge has specifically raised the question of constitutionality, in relation to Articles 2 and 24 of the Constitution, of:

1) the “norm created in our legal order by the incorporation, by virtue of Article 10, para. 1 of the Constitution”, of the international custom of immunity of States from the civil jurisdiction of other States, as interpreted by the International Court of Justice (ICJ) in its Judgment of 3 February 2012, insofar as it considers gross violations of international humanitarian law and of fundamental rights, such as war crimes and crimes against humanity, to be acts jure imperii and thus excluded from the jurisdiction [of civil courts];

2) Article 1 of the Law of Adaptation to the Charter of the United Nations (Law No. 848 of 17 August 1957 on the “Execution of the Statute of the United Nations, signed in San Francisco on 16 June 1945”), insofar as, through the incorporation of Article 94 of the United Nations Charter, it obliges the Italian judge to (also) comply with the Judgment of the ICJ, which established the duty of Italian courts to deny their jurisdiction in the examination of action for damages for crimes against humanity, committed jure imperii by the Third Reich, at least in part in Italian territory;

3) Article 1 (recte: Article 3) of Law No. 5 of 14 January 2013 (Accession by the Italian Republic to the United Nations Convention on Jurisdictional Immunities of States and their Property, done in New York on 2 December 2004, as well as provisions for the amendment of the domestic legal order), which obliges the national judge to comply with the judgment of the ICJ and thus to deny their jurisdiction in future cases concerning acts committed jure imperii by a foreign State, even when those acts costitute gross violations of international humanitarian law and of fundamental rights, such as the war crimes and crimes against humanity committed in Italy and in Germany against Italian citizens in the period 1943 to 1945 by Third Reich troops, [and which also obliged the national judge] to allow the revision (revocazione) of final judgments that did not recognize the immunity;

[further recalling that] the President of the Council of Ministers has intervened in the proceedings and, through the Avvocatura Generale dello Stato [the Office of the State attorney], has argued that the questions raised by the referring judge regarding the impugned provisions are inadmissible or, in the alternative, ill-founded.

Considering that the second and third of the abovementioned questions are manifestly inadmissible as they have become moot, since this Court declared in its Judgment No. 238 of 2014 the unconstitutionality of Article 1 of Law No. 848/1957 (consistent with the submissions of the referring Judge, i.e. “to the extent that [the norm] obliges Italian courts to comply with the Judgment of the ICJ of 3 February 2012, which requires that Italian courts deny their jurisdiction in case of acts of a foreign State constituting war crimes and crimes against humanity, in breach of inviolable human rights”), as well as of Article 3 of Law No. 5/2013;

[also considering that] the remaining (first) question of constitutionality – of the norm that the referring judge presumes to have been “created in our legal order by the incorporation, by virtue of Article 10, para. 1 of the Constitution, of the international custom, as found by the International Court of Justice in its Judgment of 2 February 2012, insofar as it denies the jurisdiction [of domestic courts] in the examination of actions for damages for war crimes” – is also manifestly inadmissible, because of lack of foundation ab origine;

[further considering that] this Court has established in the aforementioned Judgment No. 238/2014 – after finding that, “even with regard to customary international law”, only [the Constitutional Court] has the competence [to assess the] compatibility with fundamental principles and inviolable human rights, which constitute the “qualifying fundamental elements of the constitutional order, as such falling outside the scope of constitutional review” – that “insofar as the law of immunity from jurisdiction of States conflicts with the aforementioned fundamental principles [of the Constitution], it has not entered the Italian legal order and, therefore, does not have any effect therein”; and therefore it has not created the (domestic) norm that the referring judge has questioned, on the wrongful assumption of its incorporation by virtue of Article 10 of the Constitution.

For These Reasons

THE CONSTITUTIONAL COURT

1) declares the manifest inadmissibility of the question of constitutionality of the “norm created in our legal order by the incorporation, by virtue of Article 10, para. 1 of the Constitution”, of the international custom established by the International Court of Justice (ICJ) in its Judgment of 3 February 2012, insofar as it denies the jurisdiction of civil courts in the actions for damages for war crimes committed jure imperii by the Third Reich, at least in part in the State of the Court seized”, raised in relation to Articles 2 and 24 of the Constitution by the Tribunal of Florence through the Orders mentioned above;

2) declares the manifest inadmissibility of the question of constitutionality of Article 1 of Law No. 848 of 17 August 1957 (Execution of the United Nations Charter, signed in San Francisco on 16 June 1945), “insofar as, through the incorporation of Article 94 of the U.N. Charter, it obliges the national judge to comply with the Judgment of the ICJ, which established the duty of Italian courts to deny their jurisdiction in the examination of actions for damages for crimes against humanity, committed jure imperii by the Third Reich, at least in part in Italian territory”, raised in relation to Articles 2 and 24 of the Constitution by the Tribunal of Florence through the Orders mentioned above;

3) declares the manifest inadmissibility of Article 3 of Law No. 5 of 14 January 2013 (Accession by the Italian Republic to the United Nations Convention on Jurisdictional Immunities of States and their Property, done in New York on 2 December 2004, as well as provisions for the amendment of the domestic legal order), “insofar as it obliges the national judge to comply with the Judgment of the ICJ, even when it established the duty of Italian courts to deny their jurisdiction in the examination of actions for damages for crimes against humanity, committed jure imperii by the Third Reich in Italian territory”, raised in relation to Articles 2 and 24 of the Constitution by the Tribunal of Florence through the Orders mentioned above.

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 11 February 2015.

Alessandro CRISCUOLO, President

Mario Rosario Morelli, Drafter

Gabriella Paola MELATTI, Registrar

Deposited in the Registry on 3 March 2015.

The Director of the Registry,

Gabriella Paola MELATTI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s