Republic of Italy v Chambre des Recours

JurisdictionSuiza
CourtFederal Tribunal (Switzerland)
Switzerland, Federal Tribunal.
Republic of Italy
and
Chambre Des Recours Pnaux du Tribunal d'Appel du Canton du Tessin 1

States as international persons Sovereignty and independence In foreign relations Request for mutual assistance by foreign State European Convention on mutual assistance in criminal matters, 1959 Seizure of strong box by municipal authorities Alleged violation of Articles 2 & 5 of Convention Vacation of seizure by municipal courts Appeal by foreign State Whether foreign State entitled to bring appeal Whether foreign State acting iure imperii or iure gestionis The law of Switzerland

Summary: The facts:At the request of the Italian authorities, a Swiss examining magistrate ordered the seizure of a strong-box in a Swiss bank, which had been rented by an Italian national resident in Rome and was suspected of containing fragments of a sculpture of Christ by Michaelangelo. The request was made pursuant to an Italian law prohibiting the unauthorised export of art treasures. The lessee of the strong-box appealed against the seizure, which was vacated by the Cantonal Court of Appeal of Tessin on the grounds that the conditions for the application of the European Convention on mutual assistance in criminal matters had not been fulfiled so that the request for seizure should not have been granted. The Italian State brought a public law appeal (recours de droit public) against the decision before the Federal Tribunal alleging violation of the European Convention and the constitutional rights of citizens.

Held:The appeal was inadmissible.

The Federal Tribunal only had jurisdiction to entertain a public law appeal pursuant to Article 113 of the Federal Constitution2 in cases of violation of international treaties where such appeal was brought by an individual. In submitting a request for mutual assistance the Italian State had acted not as an ordinary private property owner but as a subject of international law endowed with public power. Equally any violation of the constitutional rights of citizens could not be invoked by a body acting in its official capacity and even less by a foreign State acting iure imperii.

The following is a statement of the facts as reported in Annuaire Suisse de droit international, 1976, p. 102:

At the request of the Praetor of Rome, the examining magistrate of Sottoceneri (in the Canton of Tessin) ordered the seizure of a strongbox in a Swiss bank. This box, which had been rented by an Italian national resident in Rome, was suspected of containing fragments of a sculpture of Christ by Michaelangelo. The request of the Praetor was founded on Articles 66 to 68 of the Italian Law No. 1098 of 1 June 1939 regarding the protection of artistic and literary works. These provisions make it a punishable offence to possess or export illegally works of artistic or historical interest discovered by chance or as a result of research, or simply to fail to notify their exportation. The lessee of the strong-box appealed against the seizure to the Chamber for Criminal Appeals of the Court of Appeal of the Canton of Tessin. In allowing the appeal that Court held that the request of the Praetor did not permit the conclusion that the appellant was in possession of a work ofart discovered by chance or as a result of research. In those circumstancesthe Cantonal Court of Appeal concluded that the condition that the...

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