Reparation Claim against Germany before Polish Supreme Court

Expert Opinion, October 2010

By Prof. Andreas Fischer-Lescano

26.10.2010 Polish lawyers submitted an expert opinion written by Professor Andreas Fischer-Lescano on request by ECCHR to the Polish Supreme Court. In the expert opinion, Professor Fischer-Lescano (University of Bremen and Director of the Centre of European Laws and Politics) analyzes the question of exceptions to state immunity before foreign courts in the case of serious human rights violations.

In 2007, the polish law firm Kanzlei Nowosielski Gotkowicz und Partner (Gdańsk) filed reparation charges against the Federal Republic of Germany on behalf of 70-year old Wincjusz Natoniewski. The charge was based on crimes perpetrated by the SS in 1944 against the civilian inhabitants of a polish village. Among other injuries, the claimant suffered numerous burns all over his body during the assault, and to this day he continues to be affected by the consequences of the attack. He was not, however, included in any of the civilian groups that have been awarded damages according to an agreement between Germany and Poland. Citing the immunity of Germany before foreign courts, the Court of First Instance rejected his claim.  

In the legal opinion, commissioned by ECCHR, Prof. Dr. Fischer-Lescano concludes that under applicable international law there is no justification for the immunity of the Federal Republic of Germany in foreign court proceedings. This conclusion is particularly valid in the case, in which the abuses were committed within the forum state. This same opinion has already been presented in similar cases concerning World War II crimes before Greek and Italian courts.

The legal opinion was filed last week in preparation for the main hearing before the Supreme Court of Poland in Warsaw on Friday 29. October 2010.

A polish-language version of the opinion is available from ECCHR on request.

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