Deutsche Bahn AG v. Regione Stereá Ellada. Judgment No. 21995 (IT:CASS:2019:21995CIV). At http://www.italgiure.giustizia.it/sncass. Corte di Cassazione (III Division), September 3, 2019.

With Judgment No. 21995/2019 (the Judgment), the Italian Court of Cassation (Court of Cassation) once again tackled the limits of sovereign immunity with regard to crimes against humanity (para. 7).Footnote ¹ The Judgment is part of litigation originating in Greece with the Leivadia Tribunal's 1997 Distomo decision,Footnote ² confirmed in 2000 by the Areopago (Hellenic Supreme Court),Footnote ³ which ordered Germany to pay compensation and legal costs of approximately 50 million euros to the relatives of 218 victims of the Distomo massacre committed by the German military in 1944. In this Judgment, the Court of Cassation addressed whether sovereign immunity blocked the seizure of German assets located in Italy as part of that compensation order. The Court of Cassation's decision is noteworthy because it takes the discussion on sovereign immunity from jurisdiction and crimes against humanity one step further by addressing, in particular, the question of compensation and attachment of claims and rights held by the debtor against third parties.

In the case at hand, the German railway company Deutsche Bahn, a private joint-stock company whose single shareholder is the Federal Republic of Germany, lodged an appeal asking the Court of Cassation to set aside a judgment of the Rome Tribunal,Footnote ⁴ which granted the request to seize German assets located in Italy, in particular, the sums owed to Deutsche Bahn by the Italian railway and train companies Rete Ferroviaria Italiana and Trenitalia. The Rome Tribunal had granted the request on the grounds of the Distomo judgment, which had been declared enforceable in Italy by the Florence Court of Appeals.Footnote ⁵ Deutsche Bahn alleged that enforcement of the Greek judgment would amount to a violation of Germany's sovereign immunity from jurisdiction.

At the outset of its judgment, the Court of Cassation declared Deutsche Bahn's appeal inadmissible for lack of jurisdiction, and the Court declined to address Deutsche Bahn contention that it did not qualify as judgment debtor because it was not a party to the underlying Greek proceedings that the claimant was seeking to enforce. As the Court observed, this issue was not for the Court of Cassation to decide; to the contrary, it lay with the Court of Appeal, which has jurisdiction to rule on objections raised against enforcement (id.).

Regardless of the inadmissibility of Deutsche Bahn's appeal, the Court of Cassation proceeded to address, on the grounds of the exceptional character of the claim, Deutsche Bahn's opposition to enforcement in what may be described as an extended and detailed obiter dictum (paras. 13–24). As the Court observed (and as explained in detail below), the claimant's objection against enforcement was marred by an error of law, namely on the grounds of Judgment No. 238 of 2014 of the Constitutional Court.Footnote ⁶ While Deutsche Bahn's appeal was declared inadmissible without prejudice—thus preserving the claimant's ability to bring its objections before the proper court, i.e., the Rome Court of Appeal—the judgment of the Court of Cassation is in keeping with the Court's established case law and provides a highly persuasive, legally sound, and reasonable response that lower courts may wish to give to such appeal.

In its reasoning, the Court of Cassation started by noting that the International Court of Justice (ICJ) had in 2012 ruled in Germany v. Italy that by allowing civil claims to be brought against Germany for wartime atrocities, Italy acted in violation of Germany's sovereign immunity.Footnote ⁷ However, the Court of Cassation also proceeded to observe—as it has done in several previous judgments—that the ICJ's judgment was rendered in a dispute between two sovereign states. As such, the judgment is not directly binding on individuals and authorities (including the judicial authorities) of one of those states, since individuals and authorities are subject only to the rules of national law. Although the Italian legislature adopted Law No. 5/2013 to transpose the ICJ's ruling into the Italian legal system,Footnote ⁸ that law was adopted only after the Greek judgment was declared enforceable in Italy and, in any event, the law was subsequently declared unconstitutional by the Italian Constitutional Court in its Judgment No. 238/2014.

It follows, in the Court of Cassation's view, that state immunity from jurisdiction amounts to a prerogative (and not to a right) which is recognized by international customary rules, whose operation or applicability in Italy is, in any case, precluded as a result of the Italian Constitutional Court's Judgment No. 238/2014, for delicta imperii, i.e. for crimes committed in violation of international norms of jus cogens. Such crimes are detrimental to universal values that transcend the interests of individual states (para. 22).Footnote ⁹

On these grounds, the Court of Cassation concluded that Italian courts, both those seized with a dispute on the merits and those seized with a request for enforcement, have the “institutional duty, in inescapable compliance with the regulatory framework determined by judgment No. 238 of 2014 of the Constitutional Court, to deny any exemption from that jurisdiction over the [state] liability recognized abroad” (para. 23). As the Court specified, this applies equally to the courts that have jurisdiction on the merits, to the courts that have jurisdiction to declare the enforceability of a foreign judgment, and to the authorities in charge of executing the judgment (id.).

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By declaring Deutsche Bahn's appeal inadmissible, the Court of Cassation avoided addressing the claimant's allegation that the court of first instance's judgment—which granted the request to seize the claimant's assets in Italy to enforce the Greek judgment in the Distomo case—violated the international rules on jus cogens and sovereign immunity from jurisdiction. However, while the Court of Cassation did not address the issue in an authoritative manner, it nevertheless contributed to the debate on the boundaries between sovereign immunity and adjudication. In particular, it made clear that—in the presence of an enforceable title such as, in the instant case, the Distomo judgment—the judgment creditor may proceed to collect compensation for damages arising from the judgment debtor's sovereign acts that amount to violations of jus cogens, and specifically, to violations of humanitarian and human rights law. Against this backdrop, the judgment debtor's claims to sovereign immunity from jurisdiction do not prevent the judgment creditor's successful enforcement of the judgment: this includes attaching the foreign state's assets in the possession of third parties, in this case, the sums owed by the Italian railway and train companies to Deutsche Bahn.

This judgment of the Court of Cassation is the most recent in a series of decisions that have progressively contributed, amidst significant disagreements, to the debate on sovereign immunity from jurisdiction, and notably from enforcement, with regard to violations of humanitarian and human rights law. The dispute at hand stemmed from a branch of the litigation concerning the enforcement of the Greek Distomo judgment and it relies on the Court of Cassation's precedents, starting with the 2004 Ferrini judgment.Footnote ¹⁰ In 2004, the Court of Cassation reversed a lower court's judgment, which had denied jurisdiction of Italian courts over Germany in an action brought by an Italian citizen against Germany alleging deportation and forced labor during World War II. While acknowledging that foreign sovereign immunity is a rule of customary international law, the Court observed that the scope of application of such immunity has undergone a progressive process of erosion.Footnote ¹¹ As the Court stated, pursuant to Article 10(1) of the Italian Constitution—according to which Italy's legal system “conforms to the generally recognized principles of international law”—customary international law rules both safeguarding human rights and defining the egregious violations of those rights as international crimes automatically became part of the Italian legal system and provide judicial standards to assess conduct in breach of those rights. Adopting a systematic approach and citing Article 40 of the International Law Commission's Draft Articles on Responsibility of States for Internationally Wrongful Acts,Footnote ¹² the Court of Cassation held that international crimes were defined as serious violations of fundamental human rights. These rights are peremptory and nonderogable: in light of their primacy, they establish universal jurisdiction and override other international rules (both customary and treaty based), including sovereign immunity.

Relying on the Court of Cassation's ruling in Ferrini, the Distomo judgment creditors commenced proceedings in Italy seeking enforcement of their judgment against Germany in Italy.Footnote ¹³ However, to counter the judicial trend established with the Ferrini judgment, in 2008, Germany commenced an action against Italy at the ICJ, claiming that Italian courts had violated Germany's right to sovereign immunity from adjudication under international law by establishing jurisdiction against Germany in the Ferrini case as well as by allowing that enforcement proceedings be brought against Germany in the framework of the Distomo litigation. Those claims did not stop the Italian courts. While Germany's ICJ case was pending, the Court of Cassation reaffirmed its Ferrini holding in the 2009 Milde judgment.Footnote ¹⁴

In 2012, the ICJ upheld Germany's argument that Italy, with its judgments, had acted in clear violation of Germany's immunity from adjudication in Italian courts. Absent any binding treaty in force between the parties to govern the matter, the ICJ stressed that any entitlement to immunity was to be derived from customary international law. Relying on the case law of courts in several countries, the ICJ found that a customary international law exception to sovereign immunity based on the gravity of the violations of international human rights law could not be established.Footnote ¹⁵ The ICJ also disagreed with Italy's claim that the acts in question were a violation of jus cogens and thus could not benefit from the shield sovereign immunity afforded to states. To the contrary, the ICJ observed that the two sets of rules are different in nature: jus cogens regulates questions of substance, while rules on immunity are procedural. Consequently, rules of jus cogens cannot displace the application of the rules on sovereign immunity.Footnote ¹⁶

However, ICJ judgments are binding only on the states that were party to the case, and while those states must abide by those judgments, the states’ entities and bodies, including judicial authorities, are not necessarily bound to follow the ICJ's interpretations of law.Footnote ¹⁷ As such, the ICJ's judgment had limited authority over the domestic courts in Italy, which might simply consider it as one of the possible interpretations of international law.Footnote ¹⁸

In spite of this potentially limited authority, from February 2012 to January 2013, Italian courts conformed to the ICJ ruling. For instance, in Albers, the Court of Cassation departed from its precedents and subscribed to the ICJ's view that the necessary consensus within the international community to establish a customary rule overriding sovereign immunity in favor of the judgment creditors had not yet formed.Footnote ¹⁹ While the Court did not rule out the possibility that such a novel rule of international customary law could be established in the future, it nevertheless maintained that this was not the case at the time it rendered its judgment.

To overcome any possible objections concerning the effects of the ICJ's judgments, Italy adopted Law No. 5/2013 regulating Italy's accession to the 2004 United Nations Convention on the Jurisdictional Immunities of States and Their Property.Footnote ²⁰ In particular, the statute provided a statutory basis for the courts’ implementation of the ICJ's judgment in Germany v. Italy. Notably, pursuant to Article 3(1) of Law No. 5/2013, Italian courts must decline jurisdiction in pending proceedings to comport with any judgments rendered by the ICJ. In accordance with paragraph 2 of the same law, domestic judgments that have res judicata effects can be appealed if they conflict with a judgment rendered by the ICJ according to which Italy is precluded from exercising jurisdiction over another state.

However, in 2014, the Italian Constitutional Court declared unconstitutional the portion of Law No. 5/2013 obligating Italian courts to comply with the ICJ's ruling and requiring courts to decline jurisdiction over acts of a foreign state consisting of war crimes and crimes against humanity which infringe upon the fundamental rights of individuals.Footnote ²¹ In its reasoning, the Constitutional Court relied, in particular, on Article 2 of the Constitution which binds Italy to recognize and guarantee the inviolable rights of the person, and Article 24 of the Constitution protecting the right to a defense. The Court identified in these provisions limitations on the customary principle of sovereign immunity.Footnote ²² Consequently, it vacated the effects of the ICJ's judgment in Italy and reopened the longstanding debate on the limitations that sovereign immunity, on the one hand, and protection and enforcement of fundamental human rights, on the other hand, mutually establish.

On the same grounds, the Court also declared Article 1 of Law No. 848/1957, with which Italy ratified the UN Charter,Footnote ²³ unconstitutional

In compliance with the Constitutional Court's ruling, several judgments were rendered ordering Germany to pay damages for crimes perpetrated during World War II, the most recent being the decision reviewed here—the Court of Cassation's Judgment No. 21995/2019.Footnote ²⁵ One exception stems from the litigation surrounding the judicial lien that the judgment creditors of the Distomo judgment were granted on Villa Vigoni, real estate situated in Como (Italy) and owned by Germany, that uses it to permanently host the German-Italian Centre for the European Dialogue. Nonetheless, while the Court of Cassation ultimately decided the Villa Vigoni case in favor of Germany,Footnote ²⁶ the Court reaffirmed the case law established by the Constitutional Court's decision and ruled that the only obstacle to executing the Distomo judgment over Villa Vigoni was that the property was “owned by a foreign state and allocated for the performance of public functions” in accordance with Law No. 162/2014. That law provides immunity from measures of constraint for assets and sums deposited in bank accounts held by diplomatic missions, consular posts, or other missions of foreign states to international organizations, when these assets are used exclusively for the institutional functions of the mission.Footnote ²⁷

In Judgment No. 21995/2019, the Court of Cassation relied on the Constitutional Court's ruling in 2014 that the ICJ's 2012 judgment—affirming state immunity to its widest extent—is not directly binding on Italian courts and on the Constitutional Court's statement that there is jurisdiction, in Italy, over “acts of a foreign State consisting of war crimes and crimes against humanity affecting fundamental rights of the person” (id.). Notably, with its ruling, the Court of Cassation clarified that the effects of the Constitutional Court's 2014 judgment concern both the proceedings on the merits and the enforcement process, the latter encompassing both the declaration of enforceability of the foreign judgment and the judgment execution phases.Footnote ²⁸ In doing so, the Court relied on firm and unwavering language, recalling the courts’ “institutional duty” to decline any claims of immunity when addressing claims of state human rights violations.Footnote ²⁹

While in the Villa Vigoni case concrete enforcement of a protective measure to secure the Distomo judgment was impossible purely on the grounds that the real property that the judgment creditors were attempting to attach was used for a public purpose, the case at hand related to the seizure of the sums owed by the Italian railway and train companies to Deutsche Bahn. The ruling of the Court of Cassation thus embodies a new development in the evolving law on sovereign immunity and puts forth new possibilities for the enforcement of a judgment assigning compensation over the assets of a foreign state to the victims of crimes against humanity.

The Court of Cassation's 2019 decision further shapes the understanding of Italian law on sovereign immunity. Against this backdrop, it is of note that on November 2, 2017, a court of first instance assigned the municipality of Roccaraso and the successors of victims the amounts of 1.6 million and 5 million euros, respectively, as compensation for the massacre of 128 residents by the German armed forces in Pietransieri (Italy).Footnote ³⁰ In November 2019, to secure their credits, the Pietransieri judgment creditors applied for and obtained a judicial lien on some fields that are part of the park enclosure surrounding Villa Vigoni (which unlike the building itself, may not be allocated exclusively for public functions). The debate concerning the erosion, under Italian law, of the scope of sovereign immunity as pertains violations of fundamental human rights is far from over, and may soon undergo new developments.