Margellos v Germany

• Jurisdiction: Grecia
• Date: 17 September 2002
• Court: Special Supreme Court (Greece)

Greece, Special Supreme Court (Anotato Eidiko Dikastirio)

(Geraris, (President of the Council of State), President; Rizos (President of the State Audit Department); Kroustalakis (Vice-President of the Court of Cassation) (Areios Pagos); Rantos, Rapporteur; Sari, Rammos and Sakellaropoulou (Members of the Council of State); Simopoulos, Kritikos, Prassos and Gyftakis (Judges of the Court of Cassation or ad hoc members); Samiou, Registrar)

Margellos and Others

and

Federal Republic of Germany1

State immunity Jurisdiction Doctrine of restrictive immunity Exception to immunity for civil claims in tort Tort committed in forum State by agents of defendant State European Convention on State Immunity, 1972 Article 11 Whether now reflecting rule of customary international law Immunity from civil proceedings in respect of acts of armed forces Article 31 of Convention Whether such immunity absolute Whether any exception for war crimes or crimes against humanity violating jus cogens and not directly connected with furtherance of armed conflict Whether commission of such acts constituting tacit waiver of immunity

State immunity Jurisdiction Human rights Whether State immunity compatible with right of access to courts European Convention on Human Rights, 1950, Article 6(1) Exception to immunity for tort claims in civil proceedings

Human rights Access to courts European Convention on Human Rights, Article 6(1) State immunity Relationship between State immunity and human rights Nature of prohibition of crimes against humanity Whether constituting a rule of jus cogens Whether taking precedence over principle of State immunity

Relationship of international law and municipal law Crimes against international law Crimes against humanity and war crimes Claim for compensation in civil proceedings in tort before municipal courts Whether commission of such crimes by its armed forces precluding foreign State from relying on State immunity Whether such exception to immunity now recognized as rule of customary international law

War and armed conflict Enforcement of the laws of war Compensation and reparations Crimes against humanity and war crimes Claim for compensation brought by relatives of victims before municipal courts Atrocities committed by German forces during Second World War The law of Greece

Summary:The facts: Following the institution of proceedings in the Distomo Massacre case (p. 513 above), parallel proceedings were also brought by individuals against the Federal Republic of Germany before the Greek courts, involving claims for compensation arising from the destruction by German forces in August 1944 of property, owned by non-combatant Greek civilians, in the village of Lidoriki, in a reprisal attack for an ambush carried out by members of the Greek resistance. A reference was made by the Court of Cassation to the Special Supreme Court under Articles 28 and 100(l)(f) of the Constitution, which provided for a ruling in case of doubt as to the existence of a generally recognized rule of international law.

The question referred was whether or not the exception to State immunity for torts committed jure imperii in the forum State, enshrined in Article 11 of the European Convention on State Immunity (the Basle Convention), constituted a generally recognized rule of customary international law and, if so, whether it covered torts committed during an armed conflict against non-combatant persons having nothing to do with the furtherance of that conflict.

Held (by the Special Supreme Court, by a majority of six votes to five): Under customary international law, a foreign State continued to enj oy sovereign immunity in respect of a tort committed in the forum State in which its armed forces had participated, irrespective of whether the actions at issue violated jus cogens or whether the armed forces involved were participating in an armed conflict. Furthermore, Article 31 of the Basle Convention, which provided for immunity in respect of the acts of armed forces, was formulated in absolute terms without any exceptions (pp. 5313).

Dissenting Opinion: Five judges concluded that sovereign immunity could not be relied upon in the circumstances at issue.

The facts of the case involved war crimes expressly forbidden by the Fourth Hague Convention of 1907 and Article 6 of the Charter of the Nuremberg International Military Tribunal, whose provisions were generally accepted as rules of jus cogens. Article 3 of the Fourth Hague Convention gave rise directly to a duty for the State concerned to pay compensation for the harm caused, including all crimes committed by its armed forces. Article 11 of the Basle Convention therefore reflected a generalized international practice, recognized as a rule of customary international law, that immunity could not be asserted against tort claims arising from war crimes committed on the territory of the forum State. There was no exception to this rule where the actions at issue were committed by armed forces or groups linked to those forces and constituted war crimes. Furthermore, the acts at issue in this case were not included within the definition of armed conflict (pp. 5346).2

The following is the text of the relevant part of the judgment of the Court:

1. This case has been referred to the Special Supreme Court by Decision No 131/2001 of the First Chamber of the Court of Cassation (Areios Pagos) which, in application of Article 100(l)(f) of the Constitution, has requested adjudication as to whether Article 11 of the European Convention on State Immunity concluded in Basle in 1972 contains a generally accepted rule of international law. The question referred is whether or not the exception to State immunity contained in that provision, for torts committed jure imperii in the forum State, constitutes a generally recognized rule of customary international law and, if so, whether it covers torts committed during an armed conflict against specific non-combatant persons at a specific location who were unconnected with that conflict.

[The Court first considered and rejected certain procedural objections to the reference. The Court continued:]

9. In accordance with the combined effect of the provisions of Articles 28(1) and 100(l)(f) of the Constitution, the Special Supreme Court is called upon to examine a case which raises doubt with regard to the characterization of a rule of law as a generally accepted rule of international law. In the exercise of this jurisdiction, the Supreme Court is required to examine whether there exists a rule of international law concerning the subject matter of the referral and then to determine the precise nature, scope and...