Jurisdictional Immunities and Reparation for WWII Crimes: The Impact of the Italian Constitutional Court’s Judgement No. 159/2023 on Greek Victims’ Claims

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With Judgement No. 159/2023, the Italian Constitutional Court wrote a new chapter in the long-running judicial saga between Germany and Italy over jurisdictional immunities and reparations for serious violations of human rights committed by the Third Reich during World War II. While, in her blog post, Pelliconi has brilliantly analysed the decision’s main implications (see also Berrino and Greco), the present contribution is aimed at discussing an issue that remained outside the scope of the judgement, namely the Greek victims’ right to effective judicial protection before Italian courts.

This issue remains unresolved at the moment and is therefore destined to give rise to further developments in the next future. In this respect, an attempt will be made to highlight possible scenarios and offer some feasible solutions.

The Matter at Issue

In its famous Judgement No. 238/2014, the Constitutional Court stated that the international rule on foreign State immunity from jurisdiction, incorporated into the Italian legal system pursuant to Art. 10(1) of the Italian Constitution (It. Const.), is inoperative insofar as, by preventing the ascertainment of serious violations of human rights resulting from acta iure imperii, it conflicts with the fundamental principle of judicial protection against such egregious violations, enshrined in Arts. 2 and 24 It. Const. (see Cataldi, De Sena, Fontanelli, Schilling and Tams).

The principles on jurisdiction affirmed in this judgement rendered Italy a sort of “universal enforcement forum”, meaning that, before its domestic courts, foreign victims could request the exequatur of and enforce final judgements against Germany, even if such decisions were issued in violation of the defendant State’s immunity from jurisdiction (see Pavoni, Rossi and Greco).

Benefiting from this situation, in the past, Greek victims have been able to obtain the exequatur in Italy of final judgements ordering Germany to compensate for WWII damages. Decision No. 159/2023 itself originated from enforcement proceedings before the Tribunal of Rome for the attachment of four buildings placed in Rome and owned by Germany, which host the German Historical Institute, the German Archaeological Institute, the Goethe Institut and the Germanic School. The Greek Region of Steréa Elláda also intervened in the proceedings, based on a title arising from Judgement No. 137 of 30 October 1997, by which the Greek Court of Livadia had ordered Germany to compensate the heirs of 218 victims of the 1944 Distomo massacre.

However, on 30 April 2022, the day after Germany instituted new proceedings before the International Court of Justice (ICJ) (see Gradoni), the Italian Government enacted Decree-Law No. 36/2022, to prevent measures of constraint on German assets with a view to definitively settle the dispute with Berlin (see Berrino, Boggero and Franzina). Art. 43(3) of the Decree-Law limits access to judicial enforcement by providing that no new enforcement proceedings based on titles awarding compensation for damages caused by Germany between 1 September 1939 and 8 May 1945 shall be brought or pursued. Pending enforcement proceedings, in turn, shall be discontinued ex lege. While Italian victims or those who have suffered damages as a consequence of WWII crimes committed on Italian territory may accede to the reparation Fund established at the Italian Ministry of Economy (see Bufalini), Greek victims are deprived of enforcement judicial protection, without any equivalent means of redress being afforded to them. Technically speaking, they are not prevented from seeking the exequatur of foreign judgements but are nonetheless barred from access to judicial enforcement.

Why the Constitutional Court Did Not Address the Issue in Judgement No. 159/2023

Such legislation is arguably at odds with the very same national fundamental principles invoked by the Constitutional Court in Judgement No. 238/2014, i.e., the right to an effective judicial remedy against serious violations of human rights under Arts. 2 and 24 It. Const. It could also be incompatible with Art. 117 It. Const. as long as the latter obliges the legislature to comply with Art. 6 of the European Convention on Human Rights (ECHR), according to which the enforceability of a judicial decision must be regarded as an integral part of the right to a fair trial (cf. Hornsby, para. 40; Di Pede, paras. 20-24; Zappia, paras. 16-20).

In the case at hand, however, the Constitutional Court could not examine that issue ex officio, since its review is limited to legal questions expressly submitted to it. Relying on the text of Decree-Law No. 36/2012 prior to its conversion into law (which however took place before the referral order was adopted), the referring court had erroneously suggested that Art. 43(3) entailed an unjustifiable discrimination under Art. 3 It. Const. to the detriment of Italian victims, in the mistaken belief that foreign victims were not affected by the measure and could thus continue bringing enforcement proceedings.

A new question of constitutionality could therefore be raised soon. To this author’s knowledge, in pending enforcement proceedings brought by the Steréa Elláda Region on the assets of a German State-owned company (Deutsche Bahn), the Tribunal of Rome has invited the parties to submit their views on the possible unconstitutionality of Art. 43(3) insofar as it would impose the discontinuation of the case.

Possible Scenarios Ahead

Against this backdrop, it is possible to envisage different scenarios. Access to the reparation Fund, which is financed by Italy, is based on the criteria of territoriality of the committed crimes and the passive nationality of the victims. The resulting non-admission of Greek victims could be deemed legitimate by the Constitutional Court, as it would be difficult to maintain that Italy alone should bear the burden of compensating for damages resulting from crimes committed by the Third Reich anywhere in the world. The same cannot be said for the impossibility for foreign victims to bring enforcement proceedings despite the fact that the foreign judgements they obtained have been declared enforceable in Italy. This may be even more difficult to understand if one considers that no alternative means of redress is granted to foreign victims (the existence of equivalent protection being a fundamental condition to restrict access to justice legitimately: see Francioni, Palchetti and Tanzi).

Notably, Decree-Law No. 36/2022 determines a clear asymmetry between the more favourable position of Germany and that of other States, against which enforcement proceedings can still be brought, with the only limit of immunity from measures of constraint on properties used for non-commercial purposes. This asymmetry reflects negatively not only on the principle of sovereign equality of States but also on foreign victims of serious human rights violations, whose legitimate aspiration to reparation for the damage suffered is ultimately conditioned to the identity of the defendant State. If Greek victims can seek the exequatur in Italy of foreign judgements ordering Germany to compensate WWII damages but can no longer bring enforcement proceedings before Italian courts, a similar obstacle is not encountered by, say, US creditors of Iran in cases where the latter was held liable for sponsoring terrorism (cf. Flatow and Eisenfeld cases, with a comment by Forlati, and the Stergiopoulos case, on which see Amoroso-Pavoni, Greco, Lopes Pegna and Zarra. On the same saga see Grandaubert). The constitutional legitimacy of this discriminatory treatment could be challenged by Greek victims alleging that it is in breach of the non-discrimination principle enshrined in Art. 3 It. Const. and of the already mentioned principle of judicial protection of fundamental rights (Arts. 2 and 24 It. Const.). In such a case, the Italian Constitutional Court would be required to confirm or redefine the (extraterritorial) scope of Judgement No. 238/2014.

Still, should the Constitutional Court find that the legislation is legitimate, Greek victims that hold a title awarding compensation for damages caused by Germany could apply to the European Court of Human Rights (ECtHR), complaining that the impossibility of bringing enforcement proceedings infringes their right to effective judicial protection under Art. 6 ECHR (cf. the case law cited above). However, it is not easy to imagine the possible outcome of such an application. In the past, the Strasbourg Court has shown deference to the customary rule on State immunity from jurisdiction, as interpreted by the ICJ (cf. Jones, para. 198; see comments by Akande, Frulli, McGregor and Webb). On different occasions, it held that the denial of justice resulting therefrom is compatible with Art. 6 ECHR, even when it prevents hearing cases involving serious violations of human rights (cf. Al-Adsani, para. 54-55, Karogelopoulou, para. D.1.(a), and Jones, para. 188-189).

On this basis, it is possible to sketch two alternative solutions, bearing in mind that in the mentioned cases the right to be heard in court was at issue, whereas Decree-Law No. 36/2022 “only” affects the right to bring enforcement proceedings. On the one hand, the ECtHR could argue that even if Art. 6 ECHR can tolerate limitations on the right of access to justice with a view to complying with jurisdictional immunity, when the forum State freely decides to disregard such a norm and allow civil claims to be brought against a foreign country, a principle of consistency and protection of individuals’ legitimate expectations would estop it from depriving the victorious plaintiff of the possibility of bringing enforcement proceedings.

On the other hand, the Court could follow the opposite reasoning: if a denial of justice is compatible with Art. 6 ECHR in order to comply with jurisdictional immunity, a fortiori the same cannot but be true with regard to the choice of the Italian legislature to prevent access to enforcement proceedings based on a title deriving from foreign judgements issued (and recognised in Italy) in violation of Germany’s immunity from jurisdiction. In this sense, the victims who have benefited from the violation of the rule on immunity from jurisdiction could not subsequently complain about an infringement of their right to judicial protection: ex iniuria ius non oritur!

Possible Remedies

In light of the above, it is clear that the position of Greek victims remains unresolved at present and, therefore, may give rise to further developments in the next future. Against this backdrop, it is possible to envisage two ways out, which would not necessarily remove all the inconsistencies highlighted above, but could at least simplify the overall picture.

Preliminarily, it is worth highlighting that as regards immunity from jurisdiction, the Constitutional Court reaffirmed the validity of Judgement No. 238/2014. Therefore, the solutions sketched here are based on the legal framework outlined in the Italian legal system by the Constitutional Court in 2014 and reaffirmed in its 2023 decision, notwithstanding the fact that the main exit strategy would be that the same Constitutional Court overrules its own precedents and ensures the full application of the norm on jurisdictional immunity; a scenario which seems unlikely to occur in the near future.

A first (satisfactory) solution could be the identification of an alternative means of redress, equivalent to judicial enforcement, also in favour of Greek victims. For this purpose, the Italian legislature could build on the model of the reparation Fund established for Italian victims, eventually expanding access requirements, but to be financed with resources negotiated directly with Greece (and Germany, eventually). In this sense, institutional collaboration with Greek authorities is indispensable with a view to sharing responsibilities between the two countries.

A second prospect to be considered, although not of a satisfactory character for foreign victims, could prevent – but only for the future – the risk of aggravating the inconsistent position in which Italy finds itself by recognising foreign decisions awarding compensation, in violation of immunity from jurisdiction, without then allowing their enforcement. It does not seem impossible to envisage that, after the entry into force of Art. 43(3) of Decree-Law No. 36/2022, the principles that compose Italy’s international public policy, to be balanced reasonably in the concrete circumstance of each case (Zarra, p. 118), now prevent the exequatur of foreign judgements ordering Germany to compensate damages resulting from violations committed by the Third Reich, between 1939 and 1945, outside Italian territory and to the detriment of non-Italian nationals.

With regard to the enforcement of foreign decisions, as a matter of private international law, it is worth pointing out that the Brussels I-bis Regulation cannot apply in this case. Although both Italy and Greece are members of the European Union, the Regulation shall not extend “to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii)” (cf. Art. 1).

The applicable law should therefore be found in Law No. 218/1995. To recognise foreign decisions, the latter provides two main requirements under Art. 64(1), which can be relevant in this context. Let. (a) prescribes that the foreign judge who rendered the decision would have had jurisdiction on the case according to the principles governing jurisdiction in the Italian legal system. The assessment of this requirement may find a positive outcome, in light of the extraterritorial projection of Judgement No. 238/2014.

Let. (g) provides that the foreign decision should comply with the international public policy of the forum State. In the case at issue, international public policy comprises two fundamental principles of the Italian legal system: the need to ensure judicial protection against serious violations of human rights (Arts. 2 and 24 It. Const.), on the one hand, and the need to ensure compliance with international law, on the other. Even if, in light of Judgement No. 238/2014, the second principle cannot encompass the legal interests underlying the rule on immunity from jurisdiction, it can however at least cover the stability and peacefulness of international relations among States (Art. 11 It. Const.) and the need to ensure compliance with international treaties (Art. 117 It. Const.). In this respect, one may recall first Art. 94(1) of the United Nations Charter, as to the unexecuted ICJ Judgement of 2012, which also found that “the Italian Republic has violated its obligation to respect the immunity which the Federal Republic of Germany enjoys under international law by declaring enforceable in Italy decisions of Greek courts based on violations of international humanitarian law committed in Greece by the German Reich” (para. 139; on this ruling see Bianchi, Conforti and Milanovic). The second agreement which might also be relevant is the 1961 Bonn Agreement, concluded by Italy and Germany to settle war reparations. The latter does not deal with foreign victims’ claims and therefore cannot as such be applied to the present case (as under Art. 2(2), Italy undertook to “indemnify the Federal Republic of Germany […] from any possible action or other legal claims by Italian natural or legal persons]”). Still, it may be relevant here as a pure matter of principle in the sense that it was clearly intended to prevent civil claims from being brought against Germany before Italian courts. In 1961, the two States could not imagine the developments later occurred with Judgement No. 238/2014. To that extent, a principle of international public policy can also be inferred from the Bonn Agreement.

In the aftermath of Judgement No. 238/2014, over compliance with international law Italian courts accorded predominance to the need to ensure judicial protection against serious violations of human rights, but this was insofar as there was a reasonable expectation that, following exequatur, foreign creditors would be able to bring enforcement proceedings and thus obtain effective judicial protection. It is precisely this prospect that has become illusory as a result of Art. 43(3) of Decree-Law No. 36/2022, which has removed the possibility of enforcing titles awarding damages for crimes committed between 1939 and 1945, when the defendant is Germany. Therefore, faced with the certain prospect that, as a consequence of the new legislation, foreign creditors would not be able to bring enforcement proceedings, Italian courts could carry out a revirement of their previous case law. They could then strike a different balance among the above-mentioned principles when asked to recognise foreign decisions. Taking compliance with international law as the prevalent value, they could declare foreign judgements unenforceable on the ground that they conflict with the international public policy of the forum.

As already mentioned, this solution shows two limits. First, it may perhaps prevent the risk of inconsistency associated with the recognition of foreign judgements that are destined not to be executed, but it does not solve the problem of judicial titles awarding compensation for damages caused by Germany deriving from foreign judgements that have already been recognised in Italy as res judicata, which currently lie in a sort of limbo. Second, it does not ensure any protection for Greek victims’ claims.


If the priority objective pursued by the Italian legislature with Decree-Law No. 36/2022 is that of the stability of international relations and the settlement of the dispute with Germany, such an outcome seems unlikely to occur insofar as Italy, by recognising foreign decisions against Germany, would continue to violate the latter’s immunity from jurisdiction (Boschiero and Lopes Pegna), as it has done allowing civil claims being brought against Germany by Italian victims. In its application, Germany made it clear that it considered immunity from jurisdiction as a rule of fundamental importance for ensuring peaceful relations between States. As an expression of the principle of sovereign equality, this rule protects the State’s prerogative not to be subjected to the exercise of jurisdiction by foreign States, as such, irrespective of the existence of concrete possibilities that the judgement might eventually be enforced.

In addition, and unlike in the past, the legal framework determined by Decree-Law No. 36/2023 could give place to the paradoxical situation that even a violation of jurisdiction immunity is of no help to the Greek creditors that hold titles awarding compensation for damages caused by Germany, as they can no longer bring enforcement proceedings. Therefore, this legal framework entails the risk that another international court may find Italy acting in breach of its international obligations, this time under Art. 6 ECHR. Based on these shortcomings and uncertainties affecting the Italian legal system, it is hard to imagine that Germany would light-heartedly waive the application submitted to the ICJ. The two solutions sketched out above could provide a contribution in this direction.

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