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As opposed to USA, most of European countries support the idea of necessity to apply the distinction of state acts to jure imperii and jure gestionis in tortious activity.
This approach was confirmed by Germany in Chernobyl case. [1] The claim was brought by hobby gardener in which it was required compensation for damage caused by nuclear accident to his produce. In this case, the Court stated: “This division between sovereign and non-sovereign activity is also applied to the legal pursuit of claims of compensation of torts”. [2] Court evaluated the operation of nuclear plant as commercial activity but the plant was in the ownership of state owned enterprise, but not USSR (state).
The Austrian Supreme Court followed to this approach in decision of former Yugoslavia. The former Yugoslavia was sued for destruction of automobile during bombing at Laibach airport. The first instance court directly followed to distinction approach between jure imperii and jure gestionis and stated that bombing is a governmental act. The second instance court stated that the state immunity must be granted because tort was committed outside the territory of Austria and by this way it is avoided the question of distinction acts to jure imperii and jure gestionis. The last instance Supreme Court just repeated the decision of the fist instance court and stated that the state immunity shall be granted because of the governmental character of damaging act. [3]
Also it is worthy to note that a few European courts (German, Italian but not French) had already made exception in application of distinction approach to jure imperii and jure gestionis in traffic accidents. It was very problematic for courts to apply generally accepted nature-test in traffic accidents whereas purpose-test could help much better to identify the type of act (commercial or governmental) in this situation. But the problem was that majority of courts already decided to move away from purpose-test. The Federal Constitutional Court of Germany stated that immunity exception would be granted for all traffic accidents because it was already done in most statutes and draft conventions. [4] In 1966 in case of Ciniglio vs. Indonesian Embassy [5] the Italian Court stated: “It is impossible to invest the use of a means of transport with the character of a public act or the exercise of supremacy” and that is why states act in private capacity. [6]
Another difference with USA model is that European countries (France, Switzerland) do not provide exception in expropriation. The absence of such exception is explained with governmental character of almost all expropriations and therefore they are immune. [7]
Special attention deserved the Greet Britain, because in this state was adopted the national legislative act on state immunity- SIA. Section 5 of SIA on tortious exception contains very close content to tortious exception of FSIA of USA with an absence of distinction between public and private acts. In this section it is said that “state is not immune as respects proceedings in respect of (a) death or personal injury; or (b) damage to or loss of tangible property, caused by an act or omission in the United Kingdom”. After analyzing of this section it could be found the following requirements to application of this tortious exception.
Firstly, this exception will be applicable only in case if damage or material loss is result of harm to property and life. [8] It means that just pure economic loss or pure immaterial damage will not be sufficient for application of this exception. [9]
Secondly, it is necessary to establish that the act or omission was committed in the UK. According to the terms of this section it is supposed that tortious exception would be applicable even though damage happened outside UK. And it is somehow opposite to the content of the tortious exception of FSIA where it is required both act (omission) and damage to be occurred in USA. As example it could be remembered the Lockerbie incident in which the bomb was placed in the plane outside UK and explored in Scotland. In that case the UK court established sufficient territorial nexus with UK. But as showed follow-up cases it was not always so easy to apply this exception because of the lack of territorial nexus. According to SIA the tort-feasor must be in the territory of UK to establish territorial nexus. [10]
On this example it could be noticed that legal system of SIA of UK have similarities (absence of distinction between public and private acts in torts) with FSIA of USA as these both states are common law states and beside it, location in Europe gave to UK some similarities (not so strict territorial nexus requirement) with legal systems of European states as well. Due to this factor UK could play the role of connecting chain in sharing of state immunity experience between USA and Europe.
After considering some cases it could be assumed that some European courts had made first steps towards denial of traditional distinction between public and private acts in domestic torts by way of simple omitting this question on distinction and looking for another reason of refusal to establish jurisdiction. These steps of European courts could be also explained with influence of the modern immunity instruments, such European Convention on state immunity.
And probably it could be already said that recently we got the first fruit of such influence due to Ferrini vs. Germany case. [11]
According to the background of the mentioned case Mr. Ferrini was deported by German army to work as forced laborer at Kahla in 1944. In 1998 Mr. Ferrini brought a civil claim for compensation of the material and moral injuries suffered by him during his deportation and forced labour. [12]
Mr. Ferrini went with his claim till the Court of Cassation of Italy. He asked the Court of Cassation to set aside the decision of the Court of Appeal on the grounds that the Brussels Convention on Jurisdictional competence in Civil and Commercial Matters had to be applicable and also the Court of Appeal judged wrongly in granting of state immunity in this case which concerns ius cogens rule.
The Court of Cassation judged on the first ground that the dispute concerned acts, which were done by Germany in exercise of its authority, but the Brussels Convention was not applicable to public matters as it was explicitly proved in the recent case of Lechouritou. [13]
On the second ground of the objection the Court of Cassation referred the case back to the Court of Appeal to revise it. The Court of Cassation decided that the international rule as state immunity could be restricted by another international rule as ius cogens. Afterwards the court of Appeal came to the same decision after elaboration of Italian law, International treaty law and international court practices.
With the view of better structuring this big decision it is decided by author to divide it into two parts: firstly it will be considered the Italian law and international treaty law and then international court practice. And at the end this judgment will be accompanied with author’s comments and thoughts.
The Court of Appeal stated that according to the article 10 of Italian Constitution the customary international law is the part of national law of Italy. [14]
In turn the international treaty law recognizes the deportation and forced labour as international crimes. For example, in the Article 6(b) of the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis and Establishing the Charter of the International Military Tribunal of 1945 it is stated that deportation to slave labour constitutes a war crime. Moreover, Germany itself recognized the gravity of its committed actions by establishing the Foundation law for compensation of damages for injured persons during WWII. [15]
However, there is no explicit norm on denial of state immunity in committing of war crimes in international dimension. Only the FSIA of USA was amended by such kind of explicit norm in 1996. As it was mentioned in the subchapter 1.4.1 this norm relates to terrorist acts.
The European Convention on State immunity and Article 12 of UN Convention on State immunity provide the denial of state immunity in committing torts, which violate human rights. But these treaties have territorial restrictions. However, according to the dissenting opinions of some judges of ECHR in the McElhinney case [16] it is clear that state immunity cannot be granted anymore in claims for compensation of damages on physical attacks. [17]
The same trend in denial of state immunity in violation of human rights was adopted by some national legislative acts, such as SIA of UK, Canada State Immunity Act. Canada as UK also recognizes that there is no state immunity privilege when human rights are violated but it also requires territorial nexus with Canada. [18] In the Houshang Bouzari case, [19] it was underlined by Ontario Superior Court of Justice that the denial of state immunity is impossible because of the lack territorial nexus with the forum state. Territorial nexus requirement is a decisive factor in the issue of state immunity in Canada state immunity act as well. [20]
Besides these legal acts on state immunity the Court elaborated the numerous judgments as well. Because of the big amount of elaborated cases by the Court it will be mentioned only the most significant ones here.
