Abstract
AbstractThe main consequence of Sentenza 238/2014 is that Germany has been denied jurisdictional immunities before Italian courts. However, the inflexible conception of the right of access to courts adopted by the Corte Costituzionale gives rise to a number of questions that go well beyond the issue at stake in Judgment 238/2014. First, there is the issue of whether the right of access to justice should also prevail over the international customary rule on immunity from execution. Secondly, one may ask whether the need to protect the right provided by Article 24 of the Italian Constitution could trump the criteria established by Italian law for exercising civil jurisdiction in order to allow access to justice in respect to all international crimes, even those committed outside Italian territory and involving individuals having no link to Italy. Finally, there is the question of whether a sacrifice of the right of access to justice would be justified if alternative, non-judicial means of redress were available to the victims; in particular, whether an alternative means of redress should in any case ensure to each and every individual victim full compensation or whether instead, in light of the specific circumstances of the case—the fact that the crimes occurred in the course of an international armed conflict affecting hundreds of thousands of victims—such alternative means could provide only symbolic compensation based on a lump sum settlement. This chapter aims at exploring these and possibly other issues arising in connection to the broad interpretation of the principle of access to justice given by the Corte Costituzionale.
Highlights
International legal thinking has long been dominated by the perception of the state as a unitary subject
The fact that the executive might continue to defend the view that a state is entitled to immunity for acta iure imperii, irrespective of whether these acts amount to international crimes, has an impact on the attempt made by the Italian Constitutional Court (ItCC) to prompt a development of the international law of state immunity
It has been suggested that the Italian government should withdraw these declarations and make a new one aimed at ensuring the compatibility of Italy’s obligations under the Convention with the principles stemming from Judgment 238/2014.10 No doubt, as recognized by the International Law Commission (ILC), ‘[t]he fact that a treaty provision reflects a rule of customary international law does not in itself constitute an obstacle to the formulation of a reservation to that provision’
Summary
International legal thinking has long been dominated by the perception of the state as a unitary subject. Later the conflict centred around the implementation of the International Court of Justice’s (ICJ) Jurisdictional Immunities Judgment: while the executive and parliament focused their efforts on securing Germany’s immunity without apparently taking care of the fate of the victims’ claims, the ItCC had no hesitation in giving precedence to the right to jurisdictional protection over compliance with the 2012 ICJ Judgment This internal confrontation explains the difficulty in discerning a unitary and coherent position of the state. One ought to consider the question of whether a sacrifice to the right of access to justice would be justified if alternative, non-judicial means of redress were available to the victims; even assuming that Sentenza 238/2014 leaves open the possibility of having recourse to alternative means of redress, it remains to be seen what basic requirements these alternative means must meet These are some of the issues arising in connection to the broad interpretation of the principle of access to justice given by the Corte Costituzionale.
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a callDisclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.
