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MICHAELA RIŠOVÁ
CYIL 4 ȍ2013Ȏ
(see below). Similarly to the Greek lower courts, the Italian Supreme Court (
Corte
di Cassazione
) in the
Ferrini
case
51
decided that no immunity should be afforded in
cases where serious violations of international norms having a peremptory status were
involved. This decision was widely discussed
52
and triggered consequent proceedings
before the ICJ (see below). The Italian Supreme Court reasoned that:
“… in the particular grave violation … of the fundamental rights of the human
person, whose protection is upheld by peremptory norms of international law …
these norms prevail over all other norms, either statutory or customary in nature
… and therefore also over norms concerning immunity”.
53
However, some authors suggest that the Court did not reach such a conclusion
by “the
formal
supremacy of the
jus cogens”
, but rather “the
substantial
importance
which can be attributed to the values protected by these norms”.
54
Another interesting decision, dealing with the immunity a State official, was
recently made by the Swiss Federal Criminal Court in the
Nezzar
55
case, in which
a former Algerian Defense Minister was not considered to be immune from suits
resulting from alleged war crimes.
Turning to the practise of countries of the former Soviet Bloc, one general
comment may be made: those countries have not officially shifted to the restricted
approach to foreign State immunity and have remained firm on applying State
immunity on an absolute basis. The issue of foreign State immunity is addressed
not in separate statutes as in the common law countries but rather very briefly in
civil procedural codes. Given that the absolute theory does not distinguish between
public and private acts of State (
acta iure imperii
and
acta iure gestionis
), there are
few exceptions from immunity, and none in terms of
jus cogens
violations. As a result,
civil suits against foreign States are generally automatically dismissed. For example,
Russia’s Civil Procedural Code of 2002 provides a sole exception from immunity
in the case where a foreign State itself waives the immunity.
56
The fact that the
51
Ferrini v. Federal Republic of Germany
, Corte di Cassazione, Judgment No. 5044 (2003).
52
See De Sena, P. – De Vittor, F., State Immunity and Human Rights: The Italian Supreme Court Decision
on the Ferrini Case. In
EJIL
16 (2005), pp. 89-112; Focarelli, C., Denying Foreign State Immunity
for Commission of International Crimes: The Ferrini Decision. In 54 ICLQ (2005), pp. 951-958;
Potestá, M.,
op. cit.
53
Ferrini case, Judgment, para. 9; translated by De Sena, P. – De Vittor, F., p. 101; emphasis in original.
54
De Sena, P. – De Vittor, F., p. 101; emphasis in original. Cf. Potestá, p. 583, critizing the Court’s
conclusion by arguing that it „does not seem to reflect the current status of customary international
law” and it „does not follow that the alleged violation by one state allows the courts of another state to
deny immunity to the former”.
55
A. v. Ministére Public de la Confédération
; Swiss federal Criminal Court (Tribunal Pénal Federal),
No. BB. 20 11. 140 (2012). On the debate see Citroni, G., Swiss Court Finds No Immunity for the
Former Algerian Minister of Defense Accused of War Crimes: Another Brick in the Wall of the Fight
against Impunity. In:
EJIL
:
Talk!
available at
http://www.ejiltalk.org/swiss-court-finds-no-immunity-
for-the-former-algerian-minister-of-defence-accused-of-war-crimes-another-brick-in-the-wall-of-the-
fight-against-impunity/ [accessed on 10 June 2013].
56
Article 401(1) stipulates: “a claim against a foreign State … shall be admissible only with the consent of