La Cassazione e il «Caso Calipari» (The Judgment of the Italian Court of Cassation in the Calipari - Lozano Case)
Quaderni costituzionali, Vol. 28, No. 4, 2008, pp. 897 - 901
5 Pages Posted: 4 Jul 2012
Date Written: 2008
The paper addresses in detail the 2008 judgment of Italian Court of Cassation in the Lozano case (Court of Cassation, 1st Criminal Section, Decision No. 31171 of 19 June 2008). The criminal case in question concerns the killing of an Italian top-level intelligence officer (Nicola Calipari) and the wounding of another intelligence officer by a US military – Mario Lozano – in Baghdad in 2005. The ‘friendly-fire’ event gave rise to a trial in absentia first before the Rome Corte d’Assise and then before the Court of Cassation. Whilst the case was originally dismissed by the Corte d’Assise on the grounds that the US enjoyed the primary jurisdiction pursuant to the so-called ‘law of the flag’, the Court of Cassation went so far as to affirm that Lozano was exempted from the Italian criminal jurisdiction under the principle of functional immunity (or ratione materiae). In analyzing the case at hand the authors demonstrate that the Court’s assessment on the existence of a customary law norm grating functional immunity to any state officer abroad is misconceived, as it is based on an erroneous reconstruction of state practice and opinion juris, mostly referring to cases of immunity (ratione personae) of high state officers and diplomats.
Note: Downloadable document is in Italian.
Keywords: Calipari, Criminal Jurisdiction, Lozano, Functional Immunity, State Officers
Suggested Citation: Suggested Citation