Decision of the Constitutional Court No. 238 of 22 October 2014

The Constitutional Court decided on some questions submitted by the Court in Florence, concerning the compatibility with the Constitution of the ruling of the International Court of Justice in its decision of 2012 on the case Jurisdictional Immunities of the State (Germany v. Italy). Through that judgment, the ICJ denied that Italian courts may exercise their competence over compensation claims brought against Germany by Italian nationals, who suffered damages in consequence of international crimes committed, at least in part on Italian territory, by the Third Reich. Upholding many of the arguments from the Court in Florence, the Constitutional Court stated that the ruling of the ICJ may not be implemented domestically, because it is incompatible with certain supreme values of the Italian constitutional order. Most particularly, Article 3 of law No. 5/2013 (Accession by Italy to the UN Convention on Jurisdictional Immunities of States and Their Property) was unconstitutional, because it imposed upon Italian judges a duty of compliance with that ruling of the ICJ, which infringes the inalienable human rights and the right to a judicial remedy protected under Articles 2 and 24 of the Constitution. The same is true for law No. 848/1957, concerning the execution of the UN Charter in Italy; this law was however declared unconstitutional only insofar Italy’s obligation of complying with the ruling of 2012 of the ICJ resulted from it. Having regard to the international customary norm on State immunity as interpreted by the ICJ, i.e. applicable also in case that the acts done by a State consist in war crimes or crimes against humanity, the Constitutional Court ruled that a norm with such content is contrary to the supreme principles of the Constitution already mentioned and cannot, as a consequence, be introduced in the domestic legal order by virtue of Article 10 of the Constitution (which makes that, in principle, the legal order of Italy conforms to ‘generally recognized norms of international law’). Base on the fact that a norm on State immunity as interpreted by the ICJ does not exist in the Italian legal order, the Constitutional Court found that the related question of constitutionality was unfounded.