I. Issues of Admissibility
1) Local Remedies are collapse
Germany exercise its rights on its behalf. Its sovereign precisely rejected by highest Italian courts and violated state immunity principle which is against international law. According to restricted immunity approach states do not have absolute immunity but there is a dinstiction between jure imperii and jure gestionis which means states have immunity if it originates from sovereign (jure imperii). However, if a state acts like private entity its immunity could be restricted against private person (jure gestionis). Italian jurisprudence couldn’t make the exact dinstiction between them.
2) No need for diplomatic negotiations
Pursuant to UN Charter’s Article 33, it is not command that state should solve disputes before by using the procedures that listed there before coming to the court. Thus diplomatic negotiations should not be directly applied.
3) No Jurisdiction of European Communities
Federal Republic of Germany (Germany herein after) has already sacrificed of its jurisdiction by treaties such as The Peace Treaty of 1947, The 1961 Agreements and so forth. The articles of treaties should be applied by looking every concrete case. However, Germany found a foundation named “Remembrance, Responsibility and Future” and set its own circumstances pay compensation and make fund for it.
II. The Facts
1)The Ferrini Case
Mr. Luigi Ferrini is an Italian that had been jailed in 1944 and banished to the Germany. He forced to worked in a armament factory until the end of war. After that he started to apply legal procedure against Germany in Tribunale in Arezzo but on 3 November 2000 because of Germany shielded by state immunity it dismissed. Corte di Apello di Firezi rejected to appeal with the same reasons. On March 2004, Corte di Cassazione stated that absolute state immunity does not apply when there is a serious international crime. However, Tribunale in Arezzo was reversed on appeal by Corte di Apello di Firezi and determined compensation on behalf of Ferrini. Lastly, court made a dinstiction between “absolute state immunity and restricted state immunity”.
2)The Subsequent Cases
After Ferrini, twelve plaintiffs started proceedings opposite of Germany on 13 April 2004 in Tribunale di Torino leading by Giovanni Mantelli named Mantelli and Others. Mantelli was born in Italy, arrested by German powers and forced to work in a company. At the same time Liberato Maietta manage a case opposite side of Germany before Tribunale di Sciacca, Maietta also arrested by German forces and enforced to work. Two together focused on forced labour in Nazi-Era. As a result, Corte di Cassazione accepted that Italian jurisprudence had jurisdiction on Germany. Nevertheless lots of similar accusations against Germany are presently impending before Italian courts.
3)The Milde Case
Mr. Max Josef Milde’s case has different characteristics when compares with others. He was charged for participating in a massacre committed on 29 June 1944. He was a member of “Herman Göring” division of the German armed
forces which killed civilians and take hostages. Tribunale Mili- tare di La Spezia condemned Milde imprisonment. Germany filed an appeal against the decision in Corte Militare di Appall di Roma but it dismissed. Corte di Cassazione stated the jurisdictional immunity of States should be abolished.
4)The Distomo Case
The judgement of 4 May 2000 as the aforementioned incident has also had meaningful consequence in Italy. German powers perpetrated an assassination in Distomo consist of civilians. After 18 German soldier had been killed, German forces attacked in a nearby village in order to take revenge. Lots of people massacred. Against to Germany more than 200 relatives of victims claimed compesantion for loss of life and property in 1995. After that Regional Court of Livadia figured out they have jurisdiction over the case. Court made their decision but judgement challenged by Germany but Germanys’ appeal request dismissed. In accordance with court accepted that their decision is the earliest detail. Applicants in the Distomo took Greece and Germany before European Court of Human Rights by accusing them they violated Article 6 paragraph 1 of the Convention. While referring to state immunity court rejected request.