Prefecture of Voiotia v Germany

• Jurisdiction: Grecia
• Date: 04 May 2000
• Court: Supreme Court (Greece)

Greece, Court of Cassation (Areios Pagos)

Prefecture of Voiotia

and

Federal Republic of Germany

(Distomo Massacre Case)1

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 direcdy 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: In June 1944, German occupation forces in Greece massacred more than 300 inhabitants of the village of Distomo and burnt the village to the ground. In 1995, proceedings against Germany were instituted before the Greek courts, by over 250 relatives of the victims of the massacre, claiming compensation for loss of life and property. The Court of Livadia held Germany liable and ordered it to pay compensation to the claimants. Germany appealed to the Court of Cassation, on the ground that it was immune from the jurisdiction of the Greek courts.

Held (by seven votes to four): The appeal was dismissed. The Greek courts were competent to exercise jurisdiction over the case.

(1) State immunity was a rule of customary international law and consequently a generally accepted rule of international law which, pursuant to Article 28(1) of the Greek Constitution, formed part of the Greek legal order and had superior force. The institution of State immunity was a consequence of the sovereign equality of States and was aimed at avoiding disturbance of international relations (pp. 51516).

(2) It was now accepted by European countries that State immunity was not absolute but relative, applying only to sovereign acts performed jure imperii and not acts jure gestionis, performed by the State in the same manner as private individuals. Restrictive immunity was enshrined in the European Convention on State Immunity adopted in Basle in 1972 (the Basle Convention). While only eight European States (including Germany) had ratified the Convention, all other European States accepted the doctrine of restrictive immunity. The Basle Convention had also influenced developments in many other non-European States (pp. 51617).

(3) Article 11 of the Basle Convention provided that a State did not possess jurisdictional immunity in proceedings relating to tort claims if the facts at issue had occurred on the territory of the forum State. There was now a generally accepted rule of customary international law that States were competent to exercise jurisdiction over claims for damages against a foreign State, in relation to torts committed by its organs against persons or property on the territory of the forum State, even if the acts in question had been performed jure imperii (pp. 51718).

(4) State immunity could not be dispensed with in proceedings relating to military conflicts between States where harm to civilians was a necessary consequence. The resultant claims were normally dealt with by inter-State agreements. But an exception to the immunity rule should apply where the acts for which compensation was sought (especially crimes against humanity) had not targeted civilians generally but rather specific individuals in a given place who were neither directly nor indirectly connected with the military operations. Furthermore, the right to immunity was tacitly waived wherever it could be established that the acts in question had been performed in violation of the rules of jus cogens (pp. 51921).

Dissenting Opinion: Four judges, including the President of the Court, concluded that Germany should be entitled to jurisdictional immunity. The exceptions to immunity for claims in tort contained in the Basle Convention and the United Nations Draft Articles on Jurisdictional Immunities of States did not include claims arising from situations of armed conflict. This term was to be broadly understood and extended not only to conflicts between States but also to armed resistance against occupying forces and the response to such resistance, however disproportionate. Furthermore, an exception to immunity could not be based on the violation of a rule of jus cogens since there was no rule of customary international law that such an infringement constituted a tacit waiver of immunity (pp. 5214).

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

This appeal, based on Article 559 of the Code of Civil Procedure, has been brought by the Federal Republic of Germany against Decision No 137/1997 of the Three-Member Court of First Instance of Livadia.

Pursuant to Article 38(1) of the Statute of the International Court of Justice in The Hague (1946), one of the sources of international law is international custom, as evidence of a general practice accepted as law. Accordingly, in order for an international custom to exist, two elements are necessary: (a) a pragmatic external one, which is constant and uniform practice and (b) a psychological element, the conviction that this practice is consistent with a concrete...