英语论文网

ros and cons of denial of state immunity in violation of fundamental human rights. And that is why it was quite difficult to the Court to come to the right decision in such controversial number of judgments. Court tried to cite all relevant cases even though the decision of the court is still criticized for the omitting of many cases in which the conservative position was prevailed. [21]

The Court relied on the decision of the Greek Supreme Court in a case of Prefecture of Voiotia vs. Federal Republic of Germany [22] in which was stated that foreign State (Germany) could not claim immunity from civil jurisdiction in proceedings initiated by Greek citizen to require compensation for damages suffered because of violations of fundamental human rights within Greece. [23] However, despite of the numerous attempts of plaintiff this judgment had never been enforced.

In that judgment the Greek Court proved its position by referring to the Article 11 of the European Convention on State Immunity where the state immunity is denied in torts. According to the judgment of the Greek court the fact that Greece is not signatory state of this Convention cannot be served as an obstacle for its application, because the Convention expresses customary principle. [24]

The Greek Court understood that the reference to this Convention was not conclusive because in the Article 31 of this Convention. It is said that it is not applicable to violations arisen from armed conflicts. That is why Court additionally held that violation of peremptory norms (fundamental human rights) constitute itself the state waiver of its immunity. It means that Germany by committing war crimes waived its immunity. But someone can have a reasonable doubt regarding to such argumentation of the Court as no State would refuse from its immunity privileges in committing serious crimes against fundamental human rights of individuals. [25]

That doubt arose in the mind of the judges of Italian courts as well and that is why they did not stop their elaboration by this the only case and went further to considering other cases in proving their position.

The Court stressed the cardinal changing in positions of States in granting of state immunity in violation of human rights on example of USA. USA was one of reluctant states in application of restrictive doctrine of state immunity. However, it changed its approach and at the end of 2001 USA courts held at least in 12 decisions in favor of foreign states. [26] International Court of Justice confirmed importance of human rights as well. [27]

After analyzing the relevant international treaty legislation and the court practice the Court made judgment in favour of fundamental human rights. It was stated that granting immunity in violation of fundamental human rights contradicts to the recent developments of international treaty law and international court practice. The only way to resolve this contradiction was granting priority of some international norms (fundamental human rights as ius cogens) under others (state immunity). In view of the Court: “Legal norms should not be interpreted in isolation, as they complete and integrate each other and condition each other’s application”. [28]

And the principle of universal jurisdiction, which was thought to be applicable only for criminal proceedings, should not be seen as an obstacle for civil proceedings