CONCURRING OPINION OF JUDGE COSTA

(Translation)

1. I voted with the majority on the operative provisions of the judgment, in particular points 3 and 4 thereof, but do not agree with the reasoning. I should like to explain why, but will confine myself to the salient points.

2. What, fundamentally, was this case about? As in Banković and Others v. Belgium and Others ((dec.) [GC], no. 52207/99, ECHR 2001-XII) , it concerned the tragic consequences of the partial destruction of the Radio -t elevizij a Srbij a (RTS) building in Belgrade after it was hit by a missile fired by a NATO aircraft. Five of the people who died as a result of the air strike, which was launched in connection with the Kosovo conflict, were relatives of the applicants in the Markovic case.

3. The applicants considered the Italian authorities and the Command of NATO ’ s Allied Forces in Southern Europe responsible for the deaths and brought an action in damages against them in the Rome District Court (they subsequently discontinued the action against NATO forces).

4. The Italian authorities considered that the dispute ra ised an issue of jurisdiction ( giurisdizione ) and, relying on a provision of the Code of Civil Procedure, sought a preliminary ruling on this question from the Court of Cassation, sitting as a full court, as they were entitled to do like any other party to proceedings.

5. The Court of Cassation held that the District Court had no jurisdiction. In view of the nature of the dispute and as is noted in paragraph 19 of the present judgment, this decision brought the action pending in the District Court to an end, ipso jure .

6. Under these circumstances, the applicants lodged an application with the Court in which they argued that Article 6 § 1 of the Convention was applicable and had been violated as Italy had denied them access to a court.

7. The majority agreed that Article 6 § 1 was applicable but held that there had been no violation.

8. In essence, the Court ’ s decision that that provision was applicable was based on the fact that the applicants, whose action was founded on the law of tort (Article 2043 of the Civil Code) had, from the outset, possessed on at least arguable grounds a claim under domestic law.

9. I was somewhat hesitant about joining the majority in finding Article 6 § 1 applicable. I have had similar reservations in the past, in particular in the case of Prince Hans-Adam II of Liechtenstein v. Germany ( [GC], no. 42527/98, ECHR 2001-VIII) and would refer to my concurring opinion a nn e x ed to that judgment. However, the Court has found Article 6 § 1 to be applicable in similar situations on a number of occasions in the past, in particular when there is a serious and genuine dispute over the very existence of a “right” within the meaning of Article 6 § 1 (see, among other authorities, Benth e m v. the Netherlands , 23 October 1985, Series A no. 97; Mennitto v. Italy [GC], no. 33804/96 , §§ 25- 27 , ECHR 2000- X ; Z and Others v. the United Kingdom [GC], no. 29392/95 , § 89 , ECHR 2001-V; and Prince Hans-Adam II of Liechtenstein , cited above; and, for the opposite view, Roche v. the United Kingdom [GC] , no. 32555/96 , §§ 124- 25 , ECHR 2005- X ). I therefore decided to defer to the dominant line of authority in the case-law. Indeed, a reasonably forceful case can be made for saying that, since the Rome District Court did not dismiss the application before it de plano for lack of jurisdiction (as a separate provision of the Code of Civil Procedure permitted it to do) or of a cause of action and, since the full court of the Court of Cassation had to be called upon to decide the issue, an “arguable” claim existed for the purposes of the Court ’ s case-law.

10. That, however, is not the main point. The Court was thus unanimous in holding Article 6 to be applicable.

11. Conversely, it was extremely divided on the question whether or not there had been a violation of that provision.

12. The first argument on which the majority relied in concluding that there had been no violation is not one that I am able to accept. It runs as follows: “First and foremost the Court would note that the applicants were not in practice prevented from bringing their complaints before the domestic courts” (see paragraph 105 of the judgment). While this may be true, so what? Although they were able to bring proceedings in the Rome District Court, the District Court was prevented by the Court of Cassation ’ s judgment from examining their claim as the proceedings were, I repeat, brought to an end ipso jure , before they had even got under way. Surely it is strange to say that they were not prevented from bringing their complaints before the domestic courts. Can the right of access to a court be theoretical and illusory (in this instance amounting to mere “physical” access), or must it be practical and effective as has been stated in other spheres in dozens of judgments beginning with that in Artico v. Italy (13 May 1980, Series A no. 37) . In the instant case, this would have meant enabling the relevant court to deliver a reasoned decision (even one dismissing the claim) on the merits of the dispute, without a judex ex machina saying that it was precluded from deciding anything at all (paragraph 113 of the judgment is instructive here, too).

13. But allow me to move on. Not content with this first argument, which logically should have been self-sufficient (“first and foremost”), the judgment goes on to con struct, in paragraphs 106 to 116 , a lengthy rationale which in substance boils down to holding that:

(i) the Italian Court of Cassation is the best- placed Italian court to decide issues of domestic law;

(ii) its decision “was the result not of an immunity but of the principles governing the substantive right of action in domestic law” (paragraph 114 );

(iii) the fact that there was no possibility under Italian law of the State being held liable did not amount to a “limitation on access to a court of the kind in issue in Ashingdane ” (same paragraph).

14. I have to say that I find this line of reasoning unconvincing and self-contradictory. It is unconvincing because if all the Court needed to do was to recognise that the Court of Cassation had the right to interpret domestic law, the solution was to hand without any need for European supervision. As to the reference to Ashingdane ( v. the United Kingdom , 28 May 1985, Series A no. 93 ) , it is logically flawed as the Court in that case held that there had been no violation (by six votes to one, the sole judge in the minority being my late predecessor, Judge Pettiti). How and by what miraculous process could the fact that in the present case there was no limitation “of the kind in issue in Ashingdane ” lead to the conclusion that there has been no violation of Article 6 § 1? That I fail to understand.

15. To my mind, it would have been simpler – and clearer – to apply the standard principles. The right of access to a court is not absolute, but may be subject to implied limitations. Some of these limitations are inherent in the right of access to a court, for instance those arising out of State immunity in international law.

16. As an example, the Court applied these principles in Fogarty v. the United Kingdom ( [GC], no. 37112/97, ECHR 2001-XI), with a dissenting opinion by my colleague Judge Loucaides and a concurring opinion by me and my colleagues Judges Caflisch and Vaji ć . It is true that Fogarty concerned immunity from jurisdiction granted by the respondent State to a third-party State (the United States ). But the situation is readily transposable. The concept of act of government is familiar to both comparative law and international law and there is no more typical example of an act of government than the decision to send troops into battle or, as with Italy in the instant case, to participate in air strikes as a member of an international organisation, in particular by supplying a base for the strikes and logistical support. It is clear that Article 2043 of the Italian Civil Code affords a very wide array of remedies in quasi-tort and in general applies to the Italian State and in proceedings in the ordinary courts (such as the Rome District Court), not in the administrative courts, unlike the position in countries such as France. But that is no bar to the domestic courts ’ jurisdiction to hear claims against the Italian State being ousted when the basis of liability lies in what is undoubtedly an act of government. In other words, in Italian domestic law, no claim can be made under Article 2043 of the Civil Code when the allegedly unlawful act that caused the injury is an act of government, the result of the execution of such an act or an indirect consequence thereof.

17. Does this exemption from liability in domestic law constitute a disproportionate interference with the right of access to a court afforded by the Convention? Does it amount to a denial of justice that is incompatible with the Convention? This is a debatable point and I can certainly understand the view expressed by the minority who voted in favour of finding a violation of Article 6. However, if one decides not to go that far – for reasons which, in my view, are in no way absurd and accord with the administrative law of many European countries and general international law as they stand here and now – then one should say so and cite a standard line of authority. It is for these reasons that I am critical of the reasoning in the Markovic case, without, however, disagreeing with the conclusions.