(AA v Germany)
| Jurisdiction | Eslovenia |
| Judge | Čebulj,Janko,Testen,Ribičič,Modrijan,Fišer,Lukić,Ude |
| Court | Higher Court (Slovenia) |
| Docket Number | CONSTITUTIONAL CASE UP-13/99 |
| Date | 08 March 2001 |
Slovenia, Constitutional Court.
(Testen, President; Ude, Deputy President; Čebulj, Fišer, Janko, Modrijan, Ribičič and Lukić, Judges)
CONSTITUTIONAL CASE UP-13/99
Constitutional Case UP-13/99
State immunity — Jurisdictional immunity — Customary law obligation to accord immunity — Acta jure imperii and acta jure gestionis — Civil action against State in respect of war crimes and crimes against humanity — Acts having status of acta jure imperii — Territorial tort exception to immunity — Whether applicable to acts of armed forces in conduct of armed conflict — Whether immunity set aside in case of grave illegalities — Jus cogens — Whether immunity available where State accused of violation of jus cogens
Human rights — Access to court — Limitations — Access to court restricted by doctrine of State immunity — Whether constitutionally legitimate
War and armed conflict — War crimes — Crimes against humanity — Occupied territory — Civilian population — Deportation — Concentration camp — The law of Slovenia
Summary: The facts:— The complainant had been taken as a child from his parents by the German authorities during the occupation of Yugoslavia in the Second World War. He was transported to Germany to be Germanized and was detained in a concentration camp. He brought proceedings against Germany in the courts of Slovenia seeking damages for unlawful detention, mental anguish and destruction of property. The district court ruled that it lacked jurisdiction, because Germany was entitled to State immunity. His appeal was dismissed, as was an application for review brought to the Supreme Court. The complainant brought a constitutional complaint before the Constitutional Court, maintaining that there could be no entitlement to immunity in proceedings relating to a violation of jus cogens norms and that the decisions of the Supreme Court and the lower courts thus violated his right to judicial protection.
Held (unanimously):— The complaint was dismissed.
(1) The judgments of the Supreme Court and the lower courts were not arbitrary. A State was entitled to immunity when sued for acta jure imperiicommitted by its armed forces in time of armed conflict. The exception to immunity for torts committed on the territory of the forum State was inapplicable to such acts and international law did not recognize an exception to immunity for proceedings relating to violations of jus cogens norms (paras. 11–15).
(2) There had been no breach of the right to judicial protection. That right was not absolute and its exercise might be restricted to comply with requirements of international law. State immunity reflected the principle of the sovereign equality of States and compliance with it was a constitutionally legitimate goal (paras. 16–21).
The following is the text of the decision of the Constitutional Court:
The constitutional complaint of A. A. against Supreme Court ruling No II Ips 55/98, dated 9 September 1998, in connection with High Court Celje ruling No Cp 780/97, dated 1 October 1997, and District Court Celje ruling No P 1209/95, dated 3 July 1997, is dismissed.
1. The [district] court decided in its later challenged first-instance ruling that Slovenian courts had no jurisdiction to decide on the dispute and rejected the complainant's action. The appeal and the review [by the Supreme Court] were dismissed. The complainant had filed the action against the Federal Republic of Germany, in which he claimed damages for the activities the defendant had allegedly performed during the Second World War.
During the Second World War he had allegedly been — together with many others — forcibly taken away from his parents and transported to Germany in order to be Germanized. He claimed damages for the period spent in the concentration camp, for mental anguish (due to the death of his parents and for destroying happiness in his life) and for the property destroyed by the occupier's authorities in 1942. The complainant challenged in his constitutional complaint the position taken in the challenged rulings according to which the defendant is granted immunity in proceedings before the courts of another state. The first instance court allegedly substantiated the [jurisdictional] immunity of a foreign state by the rules of customary law without stating them. The second instance court allegedly substantiated its decision by the erroneous understanding of the principle par in parem non habet jurisdictionem, which has already been superseded long ago. The complainant asserted that [jurisdictional] immunity is not an absolute right, so a case in which jure imperii activities, which violate jus cogens, are concerned, should also be considered an exception. The complainant does not know a case in which [jurisdictional] immunity was granted to a state which had acted contrary to the fundamental principles of civilized nations. In granting [jurisdictional] immunity there is allegedly no difference between international and state courts. The Nuremberg International Court allegedly confirmed the position that in the case of a violation of the mandatory rules of international law a state cannot claim immunity. The position of the Supreme Court that international law principles have precedence over statutes was allegedly also disputed. In interpreting the European Convention on State Immunity (hereinafter ECSI)1 the court allegedly did not answer the question of whether Convention provisions referred to jure imperii activities. The position that Convention provisions are not part of customary law was allegedly erroneous. The complainant also rejected the absolute applicability of the rule pacta tertiis nec nocent nec prosunt. The obligation of international law subjects to submit to the rules and general principles of international customary law did not allegedly depend only on their will but on the rules adopted by the international community. The complainant's right to judicial protection (Art. 23 of the Constitution and Art. 6, para. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Official Gazette RS, No 33/94, IT, No 7/94 — hereinafter ECHR) was allegedly violated due to the erroneous decision on the existence of procedural requirements for the consideration of the action.
The right to legal remedies (Art. 25 of the Constitution) was allegedly violated since not enough precise reasons were stated in the challenged rulings. Since although universal human values recognized by civilized nations are also a source of law, [but] the courts did not give consideration to them in the framework of the review, the provision of Art. 153 of the Constitution was allegedly violated. The complainant suggested that the Constitutional Court annul ab initio the challenged rulings and decide that the courts of the Republic of Slovenia have jurisdiction to decide on his claim.
2. The panel of the Constitutional Court accepted the constitutional complaint for consideration by a ruling dated 30 May 2000.
3. The Supreme Court did not reply to the constitutional complaint.
4. The Federal Republic of Germany issued a declaration on the constitutional complaint. It claimed that state immunity is a recognized principle within international customary law. The principle allegedly derives from the principle of the sovereign equality of states in mutual relations. The...
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