National Implementation of IHL
Judgment No. 238/2014 in the cases concerning the constitutionality 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, signed 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 through Orders Nos. 84, 85 and 113 of 21 January 2014, and published in the Official Gazette of the Italian Republic Nos. 23 and 29, First Special Series, Year 2014
Sentenza n. 238/2014 nei giudizi di legittimità costituzionale dell’art. 1 della legge 17 agosto 1957, n. 848 (Esecuzione dello Statuto delle Nazioni Unite, firmato a San Francisco il 26 giugno 1945) e dell’art. 1 [ recte : art. 3] della legge 14 gennaio 2013, n. 5 (Adesione della Repubblica italiana alla Convenzione delle Nazioni Unite sulle immunità giurisdizionali degli Stati e dei loro beni, firmata a New York il 2 dicembre 2004, nonché norme di adeguamento dell’ordinamento interno), promossi dal Tribunale di Firenze con tre ordinanze del 21 gennaio 2014 rispettivamente iscritte ai nn. 84, 85 e 113 del registro ordinanze 2014, e pubblicate nella Gazzetta Ufficiale della Repubblica nn. 23 e 29, prima serie speciale, dell’anno 2014

22.10.2014
Constitutional Court
Italian:  
http://www.gazzettaufficiale.it/ (last accessed on 08.09.2015)

English: http://www.cortecostituzionale.it/documenti/download/doc/recent_judgments/S238_2013_en.pdf (last accessed on 08.09.2015)

Summary
On 22 October 2014, the Italian Constitutional Court declared unconstitutional certain norms adopted by the Italian legislature in order to comply with the judgement of the International Court of Justice (ICJ) on jurisdictional immunities of the State, Germany v. Italy; Greece Intervening, General List No. 143, 3 February 2012.
The Court recalled that Article 3 of the Law No. 5/2013 relating to the ratification of the United Nations (UN) Convention on Jurisdictional Immunities requires the national judge to comply with the rulings by which the ICJ excluded certain conducts of a foreign State from civil jurisdiction. The Italian Parliament had introduced this article in order to comply with the ICJ Judgement of 3 February 2012. The Court stated that the article requires Italian courts to comply with the ruling of the ICJ of 3 February 2012 and therefore to deny their jurisdiction in the examination for damages for crimes against humanity committed by a foreign State in Italian territory, without other form of judicial redress for the fundamental rights violated.. Hence it concluded that Article 3 of the Law is unconstitutional as it runs counter to the fundamental principle of judicial protection of fundamental rights guaranteed by Articles 2 and 24 of the Constitution.
The Court also declared that Article 1 of the Law of Adaptation No. 848/1957 (Law on ratification of the UN Charter) is unconstitutional, “so far as it concerns the execution of Article 94 of the United Nations Charter, exclusively to the extent that it obliges Italian courts to comply with the Judgment of the ICJ of 3 February 2012 which requires them to decline their jurisdiction in case of acts of a foreign State constituting war crimes and crimes against humanity, in breach of inviolable human rights.Nevertheless, the Court made it clear that the rest of the Law of Adaptation No. 848/1957 continues to be indisputably in full force and effect.
Lastly, the Court stated that insofar as the international law concerning State immunity from the civil jurisdiction of other States includes acts violating international law and fundamental human rights, it could not be deemed to exist in the Italian legal order since it conflicts with its basic Constitutional principles.

Decision
File TypeSizeFile Name
application/pdf 3,088 KB Italy, Case No. 2382014, Constitutional Court, 2014 [it].pdf
application/pdf 463 KB Italy, Case No. 2382014, Constitutional Court, 2014 [Eng].pdf