Brevi considerazioni sui primi seguiti della sentenza della Corte costituzionale 238/2014

By an interpretative judgment of dismissal the Italian Constitutional Court declared that the customary rule on State immunity, as interpreted by the ICJ judgment in Germany v. Italy, has never entered the domestic legal order because of its inconsistency with constitutional core values and principles (such as the right of access to a court, Article 24 of the Constitution, and the protection of fundamental human rights, Article 2 of the Constitution). Consequently, the Court declared the unconstitutionality of the legislative measures enacted by Article 3 of Law 14 January 2013 No. 5 to give effect to the ICJ judgement. This note gives account of some internal decisions following the Constitutional Court’s judgment; it also considers a recent legislative measure passed to regulate the execution against foreign States banking and postal accounts in accordance with the New York Convention on Jurisdictional Immunities of States and their Property, to which Italy acceded in January 2013. Considering the absence of specific initiatives on the part of the Italian Government to face Italy’s international obligations stemming from the ICJ judgement vis-à-vis Germany, as well as the obligation under Italian law to satisfy the victims’ right to compensation, it is for Italian courts to decide on the admissibility of individual claims against Germany taking into account the circumstances of every single case including the question of jurisdiction. Very recently, the Florence Court has decided that it has competence to decide on claims against Germany and recognized the right of victims to be compensated. Considering the content of the customary rule of State immunity from measures of constraint, it is doubtful whether the established credits could be considered effective.