CYIL Vol. 4, 2013

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