German property could be seized under Rome ruling

Europe Features

Jun 14, 2008, 14:31 GMT

Karlsruhe, Germany - The Villa Vigoni, which overlooks lovely Lake Como in Italy, is a place of dialogue, where opinion leaders from Germany and Italy pool their ideas on law, philosophy or management amid soothing views of the water and the mountains. Berlin owns the villa and maintains it as part of its cultural outreach to Italy. A Rome court ruling might wreck those agreeable talks. The judges of the court of cassation recently approved a writ on the property. If Berlin refuses to pay damages for acts by Adolf Hitler's Nazi forces during World War II, the villa could be seized, sold and the money given to the plaintiffs under two cases which have come before the court. One of them involves a Greek court's damages ruling over a Nazi massacre in Distomo, Greece in 1944. The Greek judges had awarded the victims' relatives nearly 29 million euros (45 million dollars) in the 1990s, but Berlin declined to pay up. A bid to seize the German cultural office in Athens, the Goethe Institute, was subsequently prohibited by the Greek government. Not to be outdone, the Distomo plaintiffs then decided to ask Italian courts to enforce the Greek ruling and succeeded. The Rome judges declared the Villa Vigoni as security for the debt. In the other case, the court of cassation rejected German attempts to block a damages claim by about 50 former soldiers from Italy. The Italian ex-servicemen are now set to argue the merits of their claims for compensation for their forced labour during World War II. If they succeed, Italian bailiffs may be sent to seize German property on Italian soil. Burkhard Hess, a German international-law professor at the University of Heidelberg, called the court's ruling 'bold,' noting that not many other judges round the world would agree with the court of cassation. Most national courts, as well as the European courts in Strasbourg and the International Court of Justice in The Hague prioritize a long-standing rule of international law known as sovereign immunity. Normally, sovereign immunity prevents precisely what the Greek and Italian courts have allowed: individuals suing a foreign state in their own courts. By long tradition, states can only be sued by other states, not in national courts but in international tribunals. But in the past two decades, many exceptions have developed in the basic principle of sovereign immunity. The great majority in the community of international-law scholars continues to support sovereign immunity, Martin Nettesheim of the University of Tuebingen said. But there is a growing conviction that victims of grave human-rights crimes should be able to sue states. 'The legal position at the moment is quite murky,' said law lecturer Nettesheim. If the principle of sovereign immunity were to be completely abandoned, a worldwide free-for-all would follow. Courts around the globe would suddenly find themselves examining alleged crimes against humanity in distant lands. A world away, judges would have to hear claims about the NATO bombing of Yugoslavia or atrocities in remote parts of the Congo. Michael Bothe, a University of Frankfurt law teacher, thinks that allowing more such claims might be beneficial in some ways. Compensation is currently the realm of government bureaucracies who are not necessarily better at administering it than judges are. 'Typically, their actions are politically influenced,' he told the German newspaper Die Welt. Berlin has already responded to the court of cassation ruling with a warning that it would take Italy to the International Court of Justice if its property in Italy were to be seized. German jurists say it is by no means certain that Italian judges will rule against Germany when the soldiers' claim comes to trial. That claim involves events after the 1943 collapse of the Axis between Hitler and Fascist leader Benito Mussolini. Some 600,000 Italian soldiers were interned by the Germans, their former allies, and taken to Germany and forced into labour. While Germany does not approve of Hitler's actions, it has always maintained that the Italian men were prisoners of war. The laws and customs of war on land in The Hague Convention of 1907 declare: 'The state may utilize the labour of prisoners of war.' When Germany agreed in 2000 to compensate European civilians forced by the Nazis to work in German factories and farms, it specifically excluded soldiers because of that law of war. The German Constitutional Court gave its blessing to that view. Hess, of Heidelberg, points out that the government of Italy also renounced reparations claims in its 1947 peace treaty with Germany. That commitment in international law covers Italian citizens too. Over and above that was a comprehensive German-Italian compensation treaty in 1960 that provided for 40 million Deutschmarks (31 million euros at current rates) in compensation to all Italians abused by the Nazis. So what happens if Italian judges do enter a damages finding against Germany in the end? Could the Villa Vigoni be put on the block in an auction? Could the Rome branch of the Goethe Institute be boarded up and put on the market? 'The overwhelming trend in the law is that this kind of enforcement would be impossible,' said Hess. An additional form of legal immunity protects all of a state's property abroad in sovereign use, for example diplomatic residences. Cultural relations abroad are also a sovereign activity, so the host country cannot seize cultural missions. Hess says this is one of the most incontrovertible principles of international law.