The Alternative Remedy as a Condition for the Legitimacy of the Right of Access to Justice: The Balancing Test Realised in Constitutional Court's Judgment no. 159/2023 of the 'Claims Fund' for the Nazi Crimes

With judgment no. 159 of 21 July 2023, the Italian Constitutional Court issued its ruling on the compatibility with the Constitution of Article 43 of Decree Law no. 36 of 30 April 2022, as converted through Law no. 79 of 9 June 2022. The provision established a procedural preclusion to the institution of enforcement proceeding, and the extinction of the pending ones, against German assets in the Italian territory, aimed at enforcing the judgments convicting Germany to pay damages caused by the Nazi international crimes during World War Two. It further established a Fund for reparation of the damages, pursuant to which Italy assumed the obligation to pay. This article assesses the balancing undertaken by the Constitutional Court between the individual right of access to justice, which include the right to the enforcement of final domestic judgments, and the State's interest in abiding with its international obligations. It shows how the existence of an alternative means - the Fund - was the key element in order to assess whether the limitation to the right of access to justice was justified. Finally, the contribution deals with the potential impact that judgment no. 159/2023 may have in the development of general international law and international human rights law concerning the relationship between immunities under international law and the individual right of access to justice.