DISSENTING OPINION OF JUDGE ZAGREBELSKY JOINED BY JUDGES ZUPANČIČ, JUNGWIERT, TSATSA-NIKOLOVSK A, UGREKHELIDZE, KOVLER AND DAVÍ D THÓR BJÖRGVINSSON

(Translation)

This case, which is solely concerned with the right to a court under Article 6 of the Convention, raises a question of paramount importance under the Convention, namely the position of the individual when set face to face with authority. This is authority in its most formidable form: authority based on “reason of State”. It was by pure chance that the question arose in a case against Italy . It could just as easily have been another State. The question is thus of interest to all.

In his address to the Parliamentary Assembly on 19 August 1949 presenting the proposal to institute the European Court of Human Rights, P.H. Teitgen said: “Three things still threaten our freedom. The first threat is the eternal reason of State. Behind the State, whatever its form, were it even democratic, there ever lurks as a permanent temptation, this reason of State. ... Even in our democratic countries we must be on guard against this temptation of succumbing to reason of State . ” [2] Is there any reason to suppose that this warning addressed to the fourteen member States of which the Assembly of the Council of Europe was composed at the time is of any less relevance to our present-day Europe of forty-six nations?

I regret that the conclusion adopted by the majority should have added the Court ’ s authoritative backing to the strong plea that is made, even today, in favour of “reason of State”. “Reason of S tate” has little time for law, still less for the “rule of law”, which one can scarcely conceive of without there being a possibility of having access to the courts (see Golder v. the United Kingdom , 21 February 1975 , § 34 , Series A no. 18; and, to the same effect with respect to the Italian legal system, the Constitutional Court ’ s judgment no. 26 of 1999).

The Court of Cassation stated in the present case: “ ... protected individual interests are no bar to carrying out functions of a political nature . ” Political functions and individual rights cannot, therefore, coexist, as no rights can be asserted in relation to political acts. That is a rather bald statement, one that is incompatible with the Convention and at least dubious under domestic law, as reflected in the relevant provisions of the Constitution (see paragraph 20 of the judgment), in the fact that the scope of Article 31 of Decree no. 1024 of 1924 is limited to the sole administrative court with powers of review ( Consiglio di Stato ) and in the lack of any example among the decisions of the Court of Cassation cited by the Government of a situation comparable to that which obtained in the present case (see paragraph 100 of the judgment). Indeed, the Court itself said that the applicants had, at least on arguable grounds, a claim under domestic law, which is why Article 6 was adjudged to be applicable (see paragraph 101 of the judgment).

I also note that the Court of Cassation did not specify – although it is true that the distinction is somewhat artificial in concrete cases – whether it considered there to be “immunity from liability” or “immunity from suit” (see paragraph 96 of the judgment).

In common with the respondent Government and the British Government, the majority (see paragraph 115 of the judgment) referred to Z and Others v. the United Kingdom ([GC], n o. 29392/95, § 93, ECHR 2001-V) in which the Court concluded that , even though the facts and merits of the case had not been examined, the degree of access to the court given to the applicants was sufficient to satisfy the requirements of Article 6. The applicants had sought to persuade the courts to expand the scope of the right to compensation beyond what had previously been accepted. The parties ’ arguments were heard at each of the various levels of jurisdiction through which the case passed and were exhaustively addressed in the final judgment. However, the position in the present case was quite the opposite. Although the applicants were given access to the Italian courts, it was only to be told that neither the civil courts, nor any other Italian court, had jurisdiction to hear their case. The Court of Cassation thereby restricted for all practical purposes the scope of the general law of reparation contained in Article 2043 of the Civil Code. Furthermore, unlike the domestic courts in Z and Others v. the United Kingdom , it did not balance the competing interests at stake and made no attempt to explain why in the specific circumstances of the applicants ’ case the fact that the impugned act was of a political nature should defeat their civil action.

It is easy to see how the discretionary – sometimes wholly discretionary – nature of political or governmental acts may lead to the exclusion of all right to contest them. From this perspective, the exclusion may be justified by the nature of the function performed by the government and the need to protect freedom of political decision. It is not only fields such as foreign affairs, national defence and general security that are concerned by the exclusion. However, in order to be compatible with the principle of the rule of law and the right of access to the courts inherent therein, the scope of the exclusion clearly cannot extend beyond the bounds laid down in the legal rules that regulate and circumscribe the exercise of the relevant governmental attributions (act of government). The aforesaid legitimate aim cannot go beyond the scope of the discretion which the government authority is entitled to exercise within the limitations imposed by law. In the present case, the applicants argued in the domestic courts that the Italian authorities ’ actions had contravened the rules of national law and international customary law on armed conflict. In so doing, they raised the question of the limits that should be placed on the notion of a “reas on of S tate” free from all judicial scrutiny.

It is a matter of great concern that neither the Court of Cassation nor the Court provided any definition of what might qualify as an “act of government” or “political act” (which are not identical concepts) or of what the limitations on such acts might be. Any act by a public authority will, directly or indirectly, be the result of a political decision, whether it is general or specific in content. However, to my mind, because it is too vague and too general a concept, the “function of a political nature” formula precludes any “implied limitation” on the right of access to a court. In paragraph 113 of the judgment, the Court seeks to limit the scope of the principle it has accepted by noting that the Court of Cassation ’ s decision: “concerned only one aspect of the right to bring an action against the State, this being the right to claim damages for an act of government related to an act of war . ” However, the Court of Cassation ’ s decision, which in the Court ’ s view satisfied the requirements of the Convention, was merely based on the political nature of the impugned act (see p aragraph 106 of the judgment). Nor is it clear how or why a distinction may be drawn between political acts of war and other forms of political act for the purposes of deciding whether access should be given to a court.

In reaching its conclusion, the Court of Cassation chose to disregard the nature of the court proceedings instituted by the applicants: these proceedings did not directly concern Italy ’ s participation in the armed conflict as a member of NATO and their purpose was not to have an act of government set aside. Their aim was simply to obtain compensation for the remote consequences of the political act concerned, consequences that were purely potential and unrelated to the purpose of the acts. Despite the general nature of the right set out in Article 2043 of the Italian Civil Code, the Court of Cassation ultimately refused to accept that any Italian court had jurisdiction to hear the applicants ’ claims under domestic law, solely because the decision to participate in the aforementioned military operations was political in nature. The Court of Cassation thus went beyond any legitimate aim the political-act doctrine may be recognised as furthering and far beyond the bounds of proportionality.

I can understand why the States should seek to protect themselves against the threat of legal actions such as that in the present case. However, I regret that the majority of the Court should have accepted a solution which strikes a blow at the very foundation of the Convention.

[1] 1. Serbia is not a party to this Treaty .

[2] 1. Col lected edition of the “Travaux préparatoires”, v ol. 1 , p. 41, Martinus Nijhoff, The Hague , 1975.