CONCURRING OPINION OF JUDGE BRATZA JOINED BY JUDGE ROZAKIS

1 . I share the view of the majority of the Grand Chamber that there has been no violation of Article 6 of the Convention in the present case and can in general agree with the reasoning in the Court ’ s judgment. I add some remarks of my own only because of the importance of the central question which has divided the Court, namely whether the decision of the Italian Court of Cassation that the national courts had no jurisdiction to entertain the applicants ’ claim for damages in respect of the deaths of their relatives amounted to an unjustified restriction on their access to a court for the purposes of Article 6.

2 . The distinction between provisions of domestic law and practice which bar or restrict access to a judicial remedy to determine the merits of claims relating to “rights” of a civil nature recognised in domestic law and which will, unless justified, contravene Article 6 and those which delimit the substantive content of the “right” itself an d to which in principle Article 6 has no application, is well-established in the Court ’ s case-law. The borderline between procedural restrictions and substantive limitations has frequently proved difficult to draw in practice. It remains, nevertheless, an important distinction in view of the settled principle that Article 6 does not guarantee any particular content for “rights” in the substantive law of the Contracting States and that its guarantees extend only to rights which can be said, at least on arguable grounds, to be recognised in the domestic law of the State concerned.

3 . Certain provisions fall clearly into the category of procedural restrictions: these include the examples referred to in the judgment of statutory limitation periods, orders for security for costs and regulations governing access to a court by minors and persons of unsound mind. A further example is provided by the case of Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (10 July 1998, Reports of Judgments and Decisions 1998-IV) which concerned the issue of a conclusive ministerial certificate, the effect of which was to preclude the domestic courts ’ examination of the merits of claims of discriminatory treatment. Perhaps closer to the borderline are cases concerning the grant of various immunities from suit. However, in cases concerning the conferring of immunities on States ( see Al-Adsani v. the United Kingdom [GC], no . 35763/97 , ECHR 2001-XI, and Fogarty v. the United Kingdom [GC], no. 37112/9 7, ECHR 2001-XI) and on international organisations ( see Waite and Kennedy v. Germany [GC], no. 26083/99, ECHR 1999-I), the Court interpreted such immunities as procedural bars which required justification rather than as limitations on a substantive right under domestic law.

4 . Of the cases falling the other side of the borderline, those of Z and Others v. the United Kingdom ([GC], no. 29392/95, ECHR 2001-V) and, more recently, Roche v. the United Kingdom ([GC] , no. 32555/96, ECHR 2005- X ) are perhaps the most significant. In Roche , the Court, taking as its starting - point the assessment of the House of Lords in Matthews v. Ministry of Defence , concluded that section 10 of the Crown Proceedings Act was a provision of substantive law which d elimited the rights of serviceme n to claim in tort against the Crown for personal injuries sustained while on duty and was not to be seen as conferring on the Crown an immunity from a claim in negligence which would otherwi se have been open to a servicema n. More directly relevant to the present case, the Court in Z and Others v. the United Kingdom concluded that the inability of the applicants to sue the local authority in negligence for failing to take steps to remove them from the care of the parents by whom they had been neglected and abused, flowed not from an immunity conferred on the local authority but from the applicable principles governing the substantive right of action in domestic law, an essential element of which was that it should be just and reasonable to impose a duty of care on the defendants in the particular circumstances of the case.

5 . The present case does not fit easily into either of the established categories. The applicants were prevented from having the merits of their claim in damages determined by the Italian courts by the decision of the Court of Cassation that those courts lacked jurisdiction to entertain the claim. In the proceedings for a preliminary ruling the applicants argued that the Italian courts had such jurisdiction on the grounds, inter alia , that the alleged unlawful acts which had resulted in the deaths of their relatives should be regarded as having been committed in Italy, in that the relevant military action had been organised on Italian soil and part of it had taken place there: it was contended that Italy had lent substantial and logistical support to the NATO action and had, unlike other NATO members, provided the airbases from which the aircraft which bombed Belgrade and the RTS had taken off. The applicants relied in addition on the Wartime Military Criminal Code, on the London Convention of 1951 and on the Protocol A dditional to the Geneva Conventions (Protocol I) as founding the national court ’ s jurisdiction.

6 . In ruling that the courts had no jurisdiction to entertain the claims, the Court of Cassation held that the nature of the acts and functions which were relied on to impute liability to the Italian State – in particular, the conduct of hostilities through aerial warfare – were such that the courts had no competence to review the manner in which those functions were performed. The Court of Cassation further rejected, on grounds set out in the judgment, the applicants ’ claim that the jurisdiction of the Italian courts was to be found as a matter of domestic law in the international instruments relied on.

7 . In marked contrast to the typical case of a procedural bar on access to a court, the fact that the Italian courts were unable to examine the merits of the claim stemmed not from a legislative measure or the exercise of a discretion by the executive to exclude the jurisdiction of the courts or to limit their powers of review or to remove a particular class of claim from judicial scrutiny. Moreover, the Court of Cassation ’ s decision that the national courts lacked jurisdiction cannot in my view be equated with the conferring of a blanket immunity on the defendants to the suit. The decision to decline jurisdiction was a self-imposed limitation, the Court of Cassation concluding not only that such jurisdiction was not conferred by the instruments relied on by the applicants, but that the nature of the applicants ’ claim gave rise to issues which were not capable of being determined in the national courts. It did so by applying the concept of act of government, a familiar concept in systems of civil law, whereby political acts of government in fields including international relations, foreign policy and the conduct of hostilities are not capable of being re viewed by the domestic courts.

8 . In my view, the decision of the Court of Cassation is to be seen not as creating a procedural bar to the determination of the applicants ’ rights by the national courts but rather as a substantive limitation on those rights, the Court of Cassation concluding that, because of the nature of the issues raised by their claim, the applicants had no justiciable cause of action in domestic law.

9 . It is argued that the Court of Cassation ’ s decision was inconsistent with its own previous and subsequent case-law, that the bombing of the RTS could not be classified in domestic law as an act of government capable of excluding judicial review and that, in holding that there was no jurisdiction to determine the applicants ’ claim, the Court of Cassation had wrongly disregarded or misinterpreted the provisions of domestic and international law on which the claim had been based. Reliance is also based on the paucity of the reasoning of the court and on the fact that there was no weighing of the competing interests by the court in holding jurisdiction to be excluded.

10 . As to the former argument, questions of interpretation and application of domestic law are, as the judgment emphasises, primarily for the national courts to determine and there exist in my view no grounds on which the Court could substitute its own view for that of the Court of Cassation or hold those views to be arbitrary or manifestly unreasonable.

11 . The latter argument gives me greater cause for doubt. The reasoning of the Court of Cassation was brief and open to the criticism that it contained no exposition of the boundaries of the doctrine of “act of government” which it was applying and no clear analysis of the issues to which the applicants ’ claim gave rise , which rendered the case non-justiciable. However, succinct as the court ’ s reasoning is, it seems to me that the grounds for the decision emerge sufficiently clearly, particularly when read with the earlier case-law cited by the Court of Cassation itself and referred to in paragraphs 26 and 27 of the Court ’ s judgment. The applicants ’ claim concerned deaths which occurred as the result of the bombing of the radio station in Belgrade as part of NATO operations during the highly complex Kosovo conflict and the determination of the merits of the claim would inevitably involve the national courts having to decide questions relating to the legality of the operation as a matter of international law, as well as reviewing the legitimacy of the acts and decisions of the Italian government in the exercise of their sovereign powers in the realm of foreign policy and the conduct of hostilities. It was the clear view of the Court of Cassation that these issues fell outside the proper scope of review of the national courts and that the applicants had no cause of action which was capable of being determined by those courts.

12 . The doctrine of “act of government” has no very precise boundaries and the application of the doctrine must inevitably depend on the particular circumstances of the case in which it is raised. Moreover, like the doctrine of State immunity, with which it may sometimes overlap, it is not static but is liable to change and development over time. In my view, in concluding at the material time that, in the particular circumstances of the case before it, the doctrine was not only material but precluded the national courts from determining the issues raised by the case, the Court of Cassation did not exceed any acceptable limits.

Accordingly, there has in my view been no unjustified restriction on the applicants ’ access to a court in violation of Article 6 of the Convention.