Italian State v X
| Date | 06 février 1985 |
| Court | Federal Tribunal (Switzerland) |
State immunity Jurisdictional immunity Dispute over moveable property Distinction between sovereign and non-sovereign activities Property right of foreign State based on public law Legislation for the protection of objects of historical interest Whether foreign State immune from claim for return of property
States Sovereignty and independence In foreign relations Request for mutual assistance by foreign State European Convention on Mutual Assistance in Criminal Matters, 1959 Article 6(2) Duty to return property handed over as soon as possible Proceedings instituted by individual in requested State for return of property Whether requesting State entitled to immunity from jurisdiction
Relationship of international law and municipal law Recognition and enforcement of foreign laws Public law of foreign State Whether application of such law by municipal courts is admissible Whether courts may take foreign public law into account The law of Switzerland
Summary: The facts:X instituted proceedings against Italy for the return of a set of historic stone tablets. The tablets had been handed over to Italy by the Swiss authorities to serve as evidence in criminal proceedings, following a request made in accordance with the provisions of the European Convention on Mutual Assistance in Criminal Matters, 1959. The court of first instance held that Italy was entitled to immunity from the proceedings but, on appeal, the Court of Appeal of Basle rejected the plea of immunity and remitted the case for consideration on the merits. Italy lodged a public law appeal before the Federal Tribunal.
Held:The appeal was allowed.
(1) It was now undisputed that a foreign State enjoyed immunity from jurisdiction only where the dispute related to its sovereign activities and not where it had acted as the holder of private rights. The nature of the right claimed was the decisive criterion in making this distinction. Italy based its rights to the property at issue in this case on its public law legislation protecting objects of historical interest. The claim had been formulated by Italy in the exercise of its sovereign powers, so that it was entitled to rely on immunity. Immunity was a preliminary issue and it was not necessary for the foreign State concerned to establish the merits of its claim.
(2) The granting of immunity in this case would not lead to the inadmissible recognition of foreign public law. The Swiss courts had consistently taken account of foreign public law in determining the nature of rights for the purpose of deciding the question of immunity, just as it was necessary in matters of extradition or mutual legal assistance to take account of such law. It was the application of the provisions of foreign public law by the Swiss courts which was inadmissible and no such application was involved here.
(3) It had been asserted that Italy should not be allowed to invoke immunity in this case because to do so would be contrary to good faith since, by virtue of Article 6(2) of the European Convention on Mutual Assistance in Criminal Matters, it was bound to return the tablets to Switzerland. But this provision merely stated that any objects handed over should be returned as soon as possible unless their return was waived by the requested State. It had not been established that Italy was in breach of this provision.
The text of the relevant part of the judgment of the Court commences on the opposite page.
X instituted proceedings in reliance on property rights against the Italian State for the return of a set of historic stone tablets bearing inscriptions. These tablets had been handed over to Italy by Switzerland since they were required as means of proof in criminal proceedings. The Civil Court of the Canton of the City of Basle refused to examine the claim and held that the Italian State was entitled to rely on its immunity under international law, so that the Court lacked jurisdiction over the dispute. X lodged an appeal...
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