Prefecture of Voiotia v. Federal Republic of Germany

Court	Areios Pagos (Supreme Court), Greece
Case number	11/2000 (288933)
Decision title	Judgment
Decision date	4 May 2000
Parties	Prefecture of Voiotia (Greece) Federal Republic of Germany
Other names	Distomo massacre case
Categories	War crimes
Keywords	war crimes, state immunity, jurisdiction, jus cogens
Links	Judgment (in Greek) Judgment (English translation)
Other countries involved	Germany

Summary

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, as reprisal for a partisan attack on German troops. 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, Greece, held Germany liable and ordered it to pay compensation to the claimants. Germany appealed to the Greek Supreme Court, on the ground that it was immune from the jurisdiction of the Greek courts, on the basis of state immunity.

The Greek Supreme Court dismissed the appeal and rejected Germany’s claim of jurisdictional immunity. The Court denied German immunity applying Article 11 of the European Convention on State Immunity, considered to correspond to customary international law. Moreover, the Court held that violation of peremptory norms would have the legal effect of implicitly waiving the jurisdictional immunity. It reasoned that torts in breach of rules of peremptory international law cannot be claimed to be acts jure imperii, concluding that Germany, by breaching jus cogens, had implicitly waived its immunity.

Procedural history

The Court of First Instance of Leivadia gave a verdict in the case on 30 October 1997, holding Germany liable for the Distomo massacre and awarding - in other words, ordering Germany to pay - damages in the amount of approximately $30 million.

Related developments

Following the dismissal of Germany’s appeal by the Greek Supreme Court, the judgment of the Court of First Instance of Leivadia awarding compensation became final.

However, the efforts to enforce the judgment eventually failed because the Minister of Justice denied his approval – a necessary prerequisite for executing a judgment against a foreign state under Greek law (Art. 923 of the Code of Civil Procedure). This decision was upheld by the Athens Court of Appeal on 14 September 2001. Redress was then sought in the European Court of Human Rights, and a complaint was lodged under Article 6(1) of the European Convention on Human Rights. This complaint was equally unsuccessful: App. No. 59021/00, Kalogeropoulou v. Greece and Germany, ECtHR, 12 Dec. 2002, 129 ILR (2007) 537. Finally in 2003, the German Federal Supreme Court rejected the enforcement of the Greek judgment in Germany, Distomo Massacre case, Bundesgerichtshof, III ZR 245/98, 26 June 2003, 129 ILR (2007) 556. The German Constitutional Court in 2006 affirmed the decision of the Bundesgerichtshof, BVerfG, 2 BvR 1476/03, 15 Feb. 2006.

In the meantime the Special Supreme Court of Greece indirectly overruled the Areios Pagos in parallel proceedings granting immunity to Germany; Margellos and Others v. Federal Republic of Germany, Anotato Eidiko Diskastirio (Greek Special Supreme Court), 6/2002, 129 ILR (2007) 526. But when the Corte di Cassazione (Italian Supreme Court) issued its Ferrini decision in 2004, the Distomo plaintiffs instituted proceeding in Italy to execute the Greek judgment against Germany there, and registered a legal charge over a property near Lake Como owned by Germany (Corte di Cassazione, 14199, 29 May 2008)

In response to these developments, Germany instituted proceedings against Italy in the ICJ, which it won: the ICJ rejected Italy's claims and fully agreed with Germany's point that customary international law holds that states are immune for jurisdiction before foreign national courts.

Legally relevant 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, as reprisal for a partisan attack on German troops. 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.

Core legal questions

Did Greece have jurisdiction over Germany against Greek claimants?

Specific legal rules and provisions

Articles 11 and 31 of the European Convention on State Immunity.

Court's holding and analysis

The Greek Supreme Court dismissed the appeal and affirmed the Greek courts’ competence to exercise jurisdiction over the case.

The Court first held that 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 an integral part of the Greek legal order and had superior force.
The Court then discussed that it was now accepted by European states 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 1972. While not ratified by all European States, all European States had accepted the doctrine of restrictive immunity, and the Court considered Article 11 of the Convention to correspond to customary law. Article 11 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 tort claims for damages against a foreign State, even if the acts in question had been performed jure imperii.
The Court notes that according to Article 31 of the Convention, State immunity could not be dispensed with in proceedings relating to military conflicts between States where harm to civilians was a necessary consequence. However, the Court argues, 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 Court reasoned, since the acts under review constituted violations of jus cogens (peremptory) norms, an implicit waiver of immunity was to be inferred. Following this line of reasoning, the Court rejected the application of the jure imperii / jure gestionis distinction in assessing whether to admit State immunity. It relied instead on the peremptory nature of the prohibition of the crimes in question, based on Art. 46 of the Hague IV Convention.