Foreign victims of the Third Reich can execute sentences on German property in Italia
Foreign creditors excluded from the Restoration Fund can continue enforcement actions. From the judges a ruling that puts human dignity at the centre
Key points
The foreign victims (or their heirs) of the crimes committed abroad by the Third Reich - expressly excluded from accessto the Restoration Fund, the only party entitled to pay - in the enforcement phase - what has been ascertained in a conviction, retain the right to continue the enforced execution on the commercial assets of the Federal Republic of Germany present in Italia. Deutsche Bahn AG, the German state railway, had tried to block the execution on German assets in Italia requested by Greek citizens who were victims of war crimes committed by Germany during the World War II.
The establishment of the Ristori Fund in 2022
In Ruling no. 8785 deposited yesterday, the Third Civil Section of the Cassazione rejected the main appeal of Deutsche Bahn AG, as well as the incidental one of the Presidenza del Consiglio dei Ministri and specified that the executive procedures promoted to obtain the compensation credit by foreign citizens, victims of war crimes committed abroad, must find satisfaction in relation to the victims who do not have access to the "Fondo per il ristoro dei danni subiti dalle vittime di crimini di guerra e contro l'umanità per la lesione di diritti inviolabili della persona compiti sul territorio Italia o comunque in danno di cittadini italiani dalle Forze del Terzo Reich tra il 1 settembre 1939 e l'8 maggio 1945".
This Fund had been set up to close the dispute between Germany and Italia that had led to two successive actions by Berlin before the International Court of Justice, which had affirmed the principle of immunity of foreign states from jurisdiction. The Constitutional Court had then intervened with judgments 238/2014 and 159/2023.
Clear way for forced execution for foreign creditors
In yesterday's judgment, the Supreme Court specified, firstly, that the right to effective judicial protection enshrined in Article 24 of the Constitution must be ensured. This implies not only the possibility of turning to a judge, but also of obtaining the execution of the judicial measure, including, therefore, the enforcement of the ruling. Consequently, if a law is adopted that provides for an alternative remedy to compensation such as the use of the Restitution Fund but this instrument is not in fact accessible to foreign citizens acting as victims of crimes committed abroad expressly excluded from access to the Fund, the no'exequatur or the impossibility of proceeding with the enforcement order in Italia entails a violation of the principle of the effectiveness of protection, with the rights of victims being compromised.
Law No. 79 of 29 June 2022, which had converted Decree-Law No. 36/2022, providing for the extinction of executive proceedings relating to titles recognised by foreign judgments by which Germany was condemned to compensation for damages, must be interpreted - observes the Supreme Court - "in a constitutionally oriented sense", in order to guarantee the rights of victims whose fundamental rights have been infringed. Therefore, - the Court of Cassation specifies - the extinction of executive proceedings must be limitedto creditors who are entitled to access the Restitution Fund and cannot be extended to foreign creditors acting on German assets in Italia by virtue of the conviction for crimes. Therefore, 'extinction cannot operate unless the takeover of the State in the restitutionary obligation is guaranteed'.
