Points of law

The Constitutional Court applies the limited theory of immunity to the execution of judgments, following the distinction between acts iure imperii and iure gestiones. It also declares that the property of an embassy is not subject to measures of constraints, including the bank accounts of a Mission.

Summary of the case

In this judgment the Constitutional Court partially recognized the violation of the fundamental right to a fair hearing by a tribunal, as established in article 24 of the Constitution. The plaintiff argued that the tribunal “a quo” violated her fundamental right to a fair hearing by a judicial organ, which the Constitutional Court has construed not only as a right to a judgment but also as a right to enforce it. In this sense, the Constitutional Court decided that, by simply denying the right to enforce the judgment based on the immunity of execution granted to South Africa, the tribunal had partially violated the fundamental right of Mrs. Abbott. Having said that there is a fundamental right to the enforcement of judicial decisions, the Constitutional Court also established that this right is not absolute, and that it does not cover the measures of constraint against the property of foreign States protected by international immunities. Indeed, the Constitutional Court clearly said that immunities of States and their property are not absolutely against the right to the enforcement of a judgment, because the principle of sovereign equality of States is a legitimate ground to restrict the scope of article 24 of the Constitution. Nevertheless, the Constitutional Court adopted a restrictive interpretation of jurisdictional immunities by affirming that the judges should decide their cases taking into account the distinction between acta iure gestionis and acta iure imperii, and not simply denying the right to enforce judgments. According to the Constitutional Court, however, the measures of constraint against bank accounts of the Embassies are in any case covered by the scope of the immunity of execution and, therefore, not subject to an embargo by domestic courts.

Sources

Aranzadi 1992, No. 107

Additional information (explanations, notes, etc.)

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