EHRM, 14-12-2006, nr. 1398/03

The respondent Government submitted that the application was inadmissible as it was incompatible with the provisions of the Convention. With reference to the Article 6 complaint, they invited the Court to adopt the reasoning it had applied in the Banković and Others case when declaring the complaints concerning the essential rights guaranteed by the Convention inadmissible ratione loci.

The reference to Article 1 in the questions that had been put to the parties by the Court and the connection that undoubtedly existed with the Article 6 issue indicated that the Court considered the relevant question to be whether a right of access to the courts to assert a Convention right as opposed to an ordinary civil right existed in the present case. A person who was not within the national jurisdiction had no right of access to a remedy that would enable him or her to claim reparation for loss from the authorities of the State concerned. If a State had no liability for acts committed outside its territory, it could hardly be criticised for declining to accept an application complaining of the consequences of such acts. The respondent Government therefore submitted that, even though — in contrast to the applicants in the Banković and Others case — the applicants in the present case had brought themselves within the ambit of the State's jurisdiction by lodging a claim with the authorities for reparation for their losses, their application, like that in Banković, had to be considered as a whole and all the complaints, including those under Article 6, declared inadmissible.

The respondent Government further noted that an analysis of NATO's decision-making system did not reveal any participation by Italy in the choice of the various targets and that all the military operations had been carried out in compliance with the rules of international humanitarian law. In those circumstances, it was very hard to establish any joint liability on the part of Italy. Accordingly, there was no jurisdictional link between the applicants and the Italian State.

In the respondent Government's submission, it would be absurd in a case in which no obligation to protect a substantive right arose to hold that there was an obligation to protect the corresponding procedural right, that is to say, to afford a means of asserting that same substantive right in the national courts.

The respondent Government also raised the same objections as in the Banković and Others case with regard to the individual responsibility of States for acts committed by an international organisation of which they were members, observing that it would be illogical to hold the State — which was not responsible for the acts of international organisations of which it was a member — accountable under the Convention for not taking domestic measures to remedy the consequences of those acts. They submitted that the application should therefore be declared inadmissible as being incompatible ratione materiae with the provisions of the Convention.

The applicants referred to the respondent Government's objection in the Banković and Others case of a failure to exhaust domestic remedies. They submitted that it amounted to an acknowledgement, at least as regards the domestic legal order, that they were within the jurisdiction of the national courts. They added that Assistant Principal State Counsel at the Court of Cassation shared that view as, in his written submissions, he had argued that the lack of jurisdiction defence raised by the Prime Minister's Office should be dismissed.

The applicants went on to say that in the case of Banković and Othersthere had been no prior referral to the national courts. They argued that that difference sufficed to show that they were indisputably within the jurisdiction of the respondent State within the meaning of Article 1 of the Convention and consequently enjoyed the protection of the Convention.

In their submission, the Court of Cassation's decision was irreconcilable with Article 1 of the Convention in that it precluded any practical application of the provisions of the Convention in domestic law.

It will be recalled that in the case of Banković and Others, the Court stated: ‘As to the ‘ordinary meaning’ of the relevant term in Article 1 of the Convention, the Court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial. While international law does not exclude a State's exercise of jurisdiction extra-territorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant States’.

It did not find any ‘jurisdictional link’ for the purposes of Article 1 of the Convention between the victims of the act complained of and the respondent States and held that the action concerned did not engage the latter's responsibility under the Convention. In the light of that finding, it considered it unnecessary to examine the remaining issues of admissibility that had been raised by the parties.

As for the other complaints which the applicants in the present case have made in their application (see paragraph 4 above), the Court has declared them inadmissible on the grounds that the specific circumstances of the case, notably the fact that the applicants had sought a remedy in the Italian courts, did not warrant a departure from the Banković case-law.

However, as regards the complaint under Article 6, taken together with Article 1 of the Convention, the Court notes that in the Banković case the respondent Government stressed that it was possible for proceedings to be brought in the Italian domestic courts, thus implying that the existence of a jurisdictional link could not be excluded for future complaints made on a different basis. The applicants had in fact already begun proceedings in the domestic courts.

The Court does not share the view of the Italian and British Governments that the subsequent institution of proceedings at the national level does not give rise to any obligation on the part of the State towards the person bringing the proceedings. Everything depends on the rights which may be claimed under the law of the State concerned. If the domestic law recognises a right to bring an action and if the right claimed is one which prima facie possesses the characteristics required by Article 6 of the Convention, the Court sees no reason why such domestic proceedings should not be subjected to the same level of scrutiny as any other proceedings brought at the national level.

Even though the extraterritorial nature of the events alleged to have been at the origin of an action may have an effect on the applicability of Article 6 and the final outcome of the proceedings, it cannot under any circumstances affect the jurisdiction ratione loci and ratione personae of the State concerned. If civil proceedings are brought in the domestic courts, the State is required by Article 1 of the Convention to secure in those proceedings respect for the rights protected by Article 6.

The Court considers that once a person brings a civil action in the courts or tribunals of a State, there indisputably exists, without prejudice to the outcome of the proceedings, a ‘jurisdictional link’ for the purposes of Article 1.

The Court notes that the applicants in the instant case brought an action in the Italian civil courts. Consequently, it finds that a ‘jurisdictional link’ existed between them and the Italian State.

In these circumstances, the Governments' preliminary objections based on the lack of a jurisdictional link must be dismissed.

The respondent Government submitted that Articles 6 and 13 did not apply to political acts. Relying on the judgment in the case of Z and Others v. the United Kingdom (cited above), they submitted that the concept of political act could not be considered a ‘procedural bar’ to the domestic courts' power to determine a substantive right, but a limitation on that right.

They submitted that there was no civil right in the present case that could be said, at least on arguable grounds, to be recognised under domestic law.

There were three reasons for this: firstly, no right to reparation for damage caused by an allegedly illegal act of war existed either under the rules of international law applicable in the instant case or under Italian domestic law; secondly, the impugned act was attributable to NATO, not the Italian State; thirdly and lastly, the right the applicants sought to assert was not recognised under domestic law because the political-acts doctrine precluded in limine any action against the State.

The applicants pointed out that the question whether their claim was well-founded or ill-founded under the domestic legal system should have been determined by a court. However, the Court of Cassation's decision had prevented them from asserting in the Italian courts a right recognised by Article 2043 of the Civil Code. Moreover, it was at variance with that court's existing case-law and subsequent decisions. In the applicants' submission, the Court of Cassation's judgment no. 5044 of 11 March 2004 (see paragraph 25 above) showed, firstly, that immunity from jurisdiction could never extend to the criminal law so that civil liability for criminal acts could not, therefore, ever be excluded and, secondly, that rules of international origin protecting fundamental human rights were an integral part of the Italian system and could therefore be relied on in support of a claim in respect of damage caused by criminal acts or by negligence. It followed that anyone alleging a violation of a right guaranteed by such rules was always entitled to the protection of the courts.

The applicants added that the respondent Government's conduct was ambiguous to say the least: in the Banković and Others case they had pleaded a failure to exhaust domestic remedies and referred to the applicants' own domestic-court proceedings then pending before the Court of Cassation. However, the respondent Government now sought to argue that the applicants had no right which they could assert in the national courts, although they seemed to have taken the opposite view when the proceedings were still pending. The applicants contended that it had therefore been reasonable for them to consider that they possessed an at least arguable right when they commenced the proceedings in the domestic courts, since even the respondent Government had been sufficiently convinced that they had as to rely on that argument in the international proceedings.

The Court considers that the objection that the application is incompatible ratione materiae with the provisions of the Convention is very closely linked to the substance of the applicants' complaint under Article 6 of the Convention. It therefore considers it appropriate to join this objection to the merits (see, among other authorities, Airey v. Ireland judgment of 9 October 1979, Series A no. 32, § 19; and Ferrazzini v. Italy [GC], no. 44759/98, § 18, ECHR 2001-VII).

The Court notes, further, that the application raises issues of fact and law which require an examination of the merits. It accordingly concludes that the application is not manifestly ill-founded. Having also established that no other obstacle to its admissibility exists, it declares the remainder of the application admissible (Vo v. France [GC], no. 53924/00, § 45, ECHR 2004-VIII). In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 6 above), the Court will immediately consider the merits of the applicants' complaint (Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 162, ECHR 2003-VI).

The applicants pointed out that, in his written submissions, Assistant Principal State Counsel at the Court of Cassation had stated that the issues that had been raised concerned the merits of the case, not the question of jurisdiction. Further, under domestic law a civil action for compensation for damage caused by a criminal offence lay irrespective of whether the offence had been made out at a criminal trial or the offender convicted by a criminal court. Consequently, they argued that they had been fully entitled to seek reparation for the damage they had sustained without being required first to bring criminal proceedings to establish individual criminal liability, which was an entirely independent form of action.

In their submission, their action in the Rome District Court satisfied all the conditions required by Article 6 of the Convention for it to qualify as a claim for the determination of a civil right. Since they had brought an ordinary action for the reparation of non-pecuniary damage caused by an illegal act, there could be no doubt that they had asserted a right protected under domestic law which the courts had full jurisdiction to determine if the defendant resided in Italy. Moreover, even if the question was examined from the territorial perspective, that is to say by reference to the locus commissi delicti, Article 6 of the Italian Criminal Code allowed proceedings to be brought even if only part of the impugned act was committed on Italian territory. The bombing could not have taken place without the agreement of the Italian political authorities and the military facilities placed at NATO's disposal by Italy, as the raids had been carried out from Italian territory. Furthermore, Article 185 of the Italian Criminal Code required reparation for criminal offences to be made in accordance with the civil law. It followed that the nature of the right the applicants had sought to assert was indeed civil and that it was only because that conclusion was inescapable that the Court of Cassation had been forced to rule that the Italian courts had no jurisdiction, thereby circumventing Assistant Principal State Counsel's conclusions.

The applicants maintained that the Court of Cassation's case-law both before and after its judgment in the present case showed that a national court could only be deemed to have no jurisdiction under Italian law if there were no rules or principles in the domestic legal order theoretically capable of protecting the personal right it was sought to assert (see the full Court of Cassation's judgments nos. 3316 of 31 May 1985 and 5740 of 24 October 1988). In the applicants' case, however, the Court of Cassation had only been able to find in favour of the respondent Government and so deny the applicants access to a court by disregarding the provisions of domestic and international law on which the applicants had based their claim for compensation for damage caused by the acts of an Italian public authority that had involved not only the bombing of the RTS building, but also all the preparatory acts performed in Italy with the permission and assistance of the Italian authorities (see Article 2043 of the Civil Code, Article 6 of the Criminal Code and Article 174 of the Wartime Criminal Military Code). Its decision had deprived the European Convention on Human Rights of all effect in domestic law and was at variance with the Court's case-law requiring the States Parties to the Convention to secure effective respect for the rights protected by the Convention. Further, the Court of Cassation had characterised the State's conduct at the origin of the claim as an ‘act of government’. It had deduced from this that the act in question was not subject to scrutiny by the courts and had gone on to assert that this principle took precedence over the European Convention on Human Rights, so that the applicants were unable to rely upon it to secure a right of access to the courts.

In the applicants' submission, that proposition denied the primacy of the Convention, a primacy that was also recognised in domestic law through Article 117 of the Constitution, which provided: ‘Legislative power is exercised by the State and the regions in compliance with the Constitution and the links arising out of the organisation of the Community and other international obligations’. Furthermore, the bombing of the RTS headquarters could not be classified in domestic law as an act of government capable of precluding judicial review. Under Italian law, an act of government excluded the jurisdiction of the administrative courts, and only of the administrative courts, as they alone took acts of government directly into consideration in their decisions or had power to quash them. Although Article 31 of Royal Decree no. 1054 of 26 June 1924 had introduced into the system a limitation on judicial review, it did not affect personal rights, such as the right to compensation for damage, which could be asserted in the ordinary courts. In any event, even if the jurisdictional limitation could still be said to exist in the Italian system after the entry into force of the Constitution, it could only cover the act of government by which Italian participation in the military operations in the former FRY had been decided on, not each isolated act or military operation such as the operation at the origin of the instant case. In reality, a bombing mission of that kind could not be characterised as an act of government that escaped the scrutiny of the courts. In a similar case, the jurisdiction of the Italian courts to try a case concerning criminal acts committed by Italian soldiers during the international military mission to Somalia was held not to have been ousted. Thus, in the applicants' submission, neither the domestic law nor the Convention justified the exclusion of a right of access to the courts to assert a right to compensation for damage caused by the acts of a public authority, even when those acts stemmed from a political decision. It was necessary to distinguish between the merits of the claim before the courts and the issue of jurisdiction. As to the general issue of the effects of the Convention in domestic law, the applicants were at pains to point out the gravity of some of the statements which the Court of Cassation had made in its judgment denying the Italian courts all jurisdiction. They noted that the judgment was contrary to the Court of Cassation's own decisions in earlier cases (see, inter alia, the judgments of Polo Castro (1988), Mediano (1993), Galeotti (1998)) and could, if confirmed, have serious implications extending beyond their own case, in view of the full Court of Cassation's role as the highest judicial authority. They added, however, that the Court of Cassation had later abandoned the line it had taken in the Markovic case, thus further highlighting the injustice they had suffered.

The respondent Government said that Article 6 was not applicable. The first reason for this was that the right claimed by the applicants was not one that could validly be said to be recognised in domestic law.

They noted that the applicants had relied on Article 2043 of the Civil Code, Articles 6 and 185 of the Criminal Code and Article 174 of the Wartime Military Criminal Code. As regards Article 2043, the State's liability in tort could only be engaged by intentional or negligent acts for which the State was accountable under various provisions of domestic law. However, the provisions that had been relied upon did not afford any right to reparation for losses caused by an allegedly illegal act of war.

The effect of Article 6 of the Criminal Code was to establish and determine the scope of the State's territorial jurisdiction in criminal cases. In the respondent Government's submission, Italy could not be accused of violating the right of access to a court merely because its domestic law provided greater access to a court than the laws of other States in that Article 6.2 of the Criminal Code afforded a remedy that enabled claims for compensation to be made for damage resulting from acts committed overseas. As to the combined application of Article 174 of the Wartime Military Criminal Code and Article 185 of the Criminal Code, it enabled the State's responsibility to be engaged for acts perpetrated by members of its armed forces.

All of the provisions on which the applicants had relied concerned the commission of an individual offence whereas their complaint in the proceedings referred to damage caused by NATO air forces which could not be said to have engaged the individual criminal liability of members of the Italian Armed Forces. The respondent Government noted in passing that the case-law cited by the applicants was totally irrelevant as it concerned either cases relating to the individual liability of a member of the armed forces or cases in which the State's civil liability had not been established.

Nor was any legal basis for the right to reparation claimed by the applicants to be found in the rules applicable to international customary law. In the domestic courts, the applicants had referred to Articles 35, 48, 51 and 91 of Protocol No. I Additional to the Geneva Conventions of 12 August 1949. These provisions restricted the right of parties to a conflict to choose the methods or means by which they would carry on the war by making it illegal for operations to be directed against non-military objectives. The intention was to create rights and obligations solely at the inter-State level and not to confer rights on individuals, even in cases involving an obligation to make reparation. The provisions did not afford any personal right to obtain reparation for damage sustained in war in the courts of the State responsible, or impose on the States Parties an obligation to change their domestic law to provide such a right.

Although perhaps desirable, no right to reparation for damage resulting from an allegedly illegal act of war currently existed under Italian law and Italy was not bound by any international obligation to introduce such a right into its domestic legal system. Reaching the opposite conclusion would entail interpreting Article 6 in such a way as to create a substantive right for which there was no basis in the law of the country concerned. Article 6 did not, however, create rights. Further, finding that Article 6 of the Convention afforded a right of access to a court to bring an action against the State for unlawful acts even in cases where the breach of the civil right resulted from acts of international policy, including peacemaking and peacekeeping operations, would undermine the efforts being made to encourage governments to cooperate in international operations of that kind.

Since the impugned act was extraterritorial and had been committed by an international organisation of which Italy was a member, it would be extremely difficult to establish any joint liability on the part of Italy. The prospects of successfully instituting proceedings in Italy to challenge the lawfulness of the actions of the NATO forces in Kosovo were remote and poor. Indeed, the applicants had not furnished a single example of a case in which such a claim had succeeded. Referring to the judgment in the case of Prince Hans-Adam II of Liechtenstein v. Germany ([GC], no. 42527/98, ECHR 2001-VIII), the respondent Government submitted, therefore, that it was not possible to assert that a sufficient link existed between the outcome of the proceedings and the recognition of the rights claimed by the applicants.

Lastly, the dispute was not of a type that could be brought before the courts. The Court of Cassation had found that the fundamental issue underlying the applicants' complaint was whether the impugned act was illegal and engaged the responsibility of the Italian State. In deciding that it was a ‘political act’ that escaped the scrutiny of the courts, the Court of Cassation had not set a limit on the right of access to a court but had defined the scope of the substantive right claimed by the applicants. In the respondent Government's submission, the political-act doctrine did not create a procedural bar that removed or restricted the right to refer complaints to the courts, it precluded an action against the State in limine.

As to the merits of the complaint, and in the event of the Court finding Article 6 of the Convention applicable despite the above arguments, the respondent Government submitted that there had been no violation of that provision and that the restriction on the applicants' right of access to a court was both consistent with the rule of law and the principle of the separation of powers, and proportionate to the legitimate aim pursued.

In their view, the national courts' lack of jurisdiction had not resulted in an infringement of the right of access to a court guaranteed by Article 6 of the Convention. The right was not unlimited: it could be regulated by the State and the State enjoyed a margin of appreciation in respect thereof. In Italy, neither the State, nor the Government, nor the public authorities enjoyed any general form of immunity from jurisdiction. The Court of Cassation's ruling in the present case that the Italian courts had no jurisdiction did not constitute a restriction applicable to claims for compensation for loss from the State per se. It referred only to a very narrow category of act asserting ‘State authority’ at the highest level. These were ‘political’ acts, which concerned the State as a unit in relation to which the judiciary could not be regarded as a ‘third party’. Legislation was a typical example of an ‘act of government’ that could cause damage to individuals. Yet the Court had already stated that the Convention did not go so far as to require the States to provide machinery for challenging legislation.

Other acts asserted ‘State authority’ at the highest level: these were acts of international policy and, through them, acts of war. The rule that acts implementing a State's fundamental political decisions were legitimately excluded from the realm of judicial competence stemmed from the principle of the separation of powers and the need to avoid involving the judiciary — which by definition had no democratic legitimacy — in the task of identifying the objectives that served the general interest or of choosing the means used to achieve such objectives. In sum, the judiciary could not be involved, even after the event, in the task of deciding national policy.

In the respondent Government's submission, there was thus a legitimate purpose to the limitation imposed on access to the courts when the impugned act had a political objective. As to the rule requiring proportionality between the means used and the aim pursued, the respondent Government pointed out that the exemption from jurisdiction did not violate the very essence of the individual's right of access to a court because it did not prevent access to a whole range of civil actions or confer immunity on large groups of people, but applied only to a limited and very strictly defined category of civil actions against the State. Nor was there any doubt that the aim pursued by the political-act doctrine could be achieved only by ousting the jurisdiction of the courts. For all these reasons, there had been no violation of Article 6 of the Convention.

The Government of Serbia and Montenegro observed that the principle requiring the reparation of damage was a fundamental notion dating back to the Roman-law principle of neminem laedere that had been recognised as a general principle by the international treaties of civilised nations. They said that the principle had been applied by the Court in the case of Osman v. the United Kingdom (judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII) when it ruled that a State — which had granted itself immunity on public-policy grounds in an action in tort — had to provide other means to enable victims of damage sustained as a result of an act or omission of the State to obtain reparation.

The Government of Serbia and Montenegro added that the underlying explanation for Article 6 of the Convention was to be found in the principle of the rule of law enunciated in Article 3 of the Statute of the Council of Europe. They said that it would be difficult to envisage that principle being applied without access to a court and referred to the judgment of Fayed v. the United Kingdom (21 September 1994, Series A no. 294-B, pp. 49–50, § 65), in which the Court stated: ‘[I]t would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 — namely that civil claims must be capable of being submitted to a judge for adjudication — if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons’.

Lastly, they explained that in Serbia and Montenegro, neither the civil nor the constitutional courts could decline to decide an issue on the pretext that it concerned an act of government. The sole problem that could arise was whether rules existed under the domestic law which would enable the acts concerned to be reviewed. Adopting the act of government doctrine would considerably limit the aim pursued in applying the law, as regards both access and the effectiveness of remedies such as those guaranteed by the Convention. By its very nature, such a doctrine would justify acts relating to the implementation of foreign policy being removed from scrutiny on the grounds of ‘reasons of State’, with the result that human-rights protection would become impossible. In the Government of Serbia and Montenegro's submission, the doctrine of the rule of law should prevail over that of reasons of State.

The British Government submitted that a rule of national law that an individual was not entitled to compensation, or its corollary that the State did not incur liability, for acts performed by the State in the conduct of foreign relations did not violate Article 6 § 1.

They noted that such a rule was common in the laws both of member States of the Council of Europe and elsewhere even though different legal systems formulated it in different ways (for example, as a rule that decisions in the conduct of foreign relations were not justiciable or that a general rule relating to liability did not extend to damage caused by acts of war or other actions taken by the State in the course of its international relations).

Whichever way it was formulated, such a rule was a limit on the scope of the substantive law of the State concerned, not a limit on the right of access to courts to enforce that law. In the British Government's submission, the substantive position was very similar to that in Z and Others v. The United Kingdom (cited above). Like the limiting rule of English law which was at issue in Z and Others, the rule of national law that the State was not liable to compensate individuals for losses which they had suffered on account of the State's decisions in the conduct of foreign relations limited the scope of the general rules of liability in their application to the State for reasons of public policy. The British Government submitted that to treat such a rule as contrary to Article 6 § 1 would be to do precisely what the Court had repeatedly said it could not do, namely to create, by way of interpretation of Article 6 § 1, a substantive right which had no basis in the law of the Contracting State concerned.

While the British Government was of the view that rules of the kind considered above did not fall within the scope of Article 6 § 1 at all, and if (contrary to that view) it were held that they did, they submitted that they should be regarded as reasonable and proportionate limitations on the scope of the rights conferred by Article 6 § 1 which were necessary in a democratic society.

The British Government had already noted that many systems of national law had a rule similar to that applied by the Italian courts in the present case. They added that such a rule served a clear public purpose in a democratic State in defining the nature of separation of powers between courts and executive with regard to the conduct of foreign relations and military activity.

In the British Government's view, such a rule could not be said to violate Article 6 § 1 of the Convention.

The right of access to a court at issue in the present case is derived from Article 6 and was established in the Golder v. the United Kingdom judgment (21 February 1975, Series A no. 18, pp. 13–18, §§ 28–36), in which the Court established, by reference to the principles of the rule of law and the avoidance of arbitrary power underlying much of the Convention, that the right of access to a court was an inherent aspect of the safeguards enshrined in Article 6. Thus, Article 6 § 1 secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court.

The Court refers to its constant case-law to the effect that ‘Article 6 § 1 extends only to ‘contestations’ (disputes) over (civil) ‘rights and obligations’ which can be said, at least on arguable grounds, to be recognised under domestic law; it does not itself guarantee any particular content for (civil) ‘rights and obligations’ in the substantive law of the Contracting States’ (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, pp. 46–47, § 81; Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, p. 70, § 192; and The Holy Monasteries v. Greece, judgment of 9 December 1994, Series A no. 301-A, pp. 36–37, § 80). The Court may not create by way of interpretation of Article 6 § 1a substantive right which has no legal basis in the State concerned (Roche v. the United Kingdom [GC], no. 32555/96, §§ 116–117, ECHR 2005-X). It will however apply to disputes of a ‘genuine and serious nature’ concerning the actual existence of the right as well as to the scope or manner in which it is exercised (see Benthem v. the Netherlands, judgment of 23 October 1985, Series A no. 97, pp. 14–15, § 32; and Z and Others, cited above, § 87).

The distinction between substantive limitations and procedural bars determines the applicability and, as the case may be, the scope of the guarantees under Article 6. The fact that the particular circumstances of, and complaints made in, a case may render it unnecessary to draw the distinction between substantive limitations and procedural bars (see, among other authorities, A. v. the United Kingdom, no. 35373/97, § 65, ECHR 2002 X) does not affect the scope of Article 6 of the Convention which can, in principle, have no application to substantive limitations on the right existing under domestic law.

In assessing therefore whether there is a civil ‘right’ and in determining the substantive or procedural characterisation to be given to the impugned restriction, the starting point must be the provisions of the relevant domestic law and their interpretation by the domestic courts (Masson and Van Zon v. the Netherlands, judgment of 28 September 1995, Series A no. 327-A, p. 19, § 49). Where, moreover, the superior national courts have analysed in a comprehensive and convincing manner the precise nature of the impugned restriction, on the basis of the relevant Convention case-law and principles drawn therefrom, this Court would need strong reasons to differ from the conclusion reached by those courts by substituting its own views for those of the national courts on a question of interpretation of domestic law (Z and Others, judgment cited above, § 101) and by finding, contrary to their view, that there was arguably a right recognised by domestic law.

Finally, in carrying out this assessment, it is necessary to look beyond the appearances and the language used and to concentrate on the realities of the situation (Van Droogenbroeck v. Belgium, judgment of 24 June 1982, Series A no. 50, § 38). The Court must not be unduly influenced by, for example, the legislative techniques used (see Fayed, judgment cited above, § 67) or by the labels put on the relevant restriction in domestic law: the oft-used word ‘immunity’ can mean an ‘immunity from liability’ (in principle, a substantive limitation) or an ‘immunity from suit’ (suggestive of a procedural limitation) (see Roche, judgment cited above, §§ 119–121).

Nevertheless, it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 — namely that civil claims must be capable of being submitted to a judge for adjudication — if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons (see Fayed, judgment cited above, pp. 49–50, § 65).

Article 6 § 1 may also be relied on by ‘anyone who considers that an interference with the exercise of one of his (civil) rights is unlawful and complains that he has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 § 1’ (see Le Compte, Van Leuven and De Meyere v. Belgium, judgment of 23 June 1981, Series A no. 43, p. 20, § 44). Where there is a serious and genuine dispute as to the lawfulness of such an interference, going either to the very existence or the scope of the asserted civil right, Article 6 § 1 entitles the individual ‘to have this question of domestic law determined by a tribunal’ (Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, p. 30, § 81; see also Tre Traktörer AB v. Sweden, judgment of 7 July 1989, Series A no. 159, p. 18, § 40).

The right is not absolute, however. It may be subject to legitimate restrictions such as statutory limitation periods, security for costs orders, regulations concerning minors and persons of unsound mind (see Stubbings and Others v. the United Kingdom, judgment of 22 October 1996, Reports 1996-IV, pp. 1502–1503, §§ 51–52; Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316-B, pp. 80–81, §§ 62–67; and Golder, judgment cited above, p. 19, § 39). Where the individual's access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and, in particular, whether it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, pp. 24–25, § 57). If the restriction is compatible with these principles, no violation of Article 6 will arise (Z and Others, judgment cited above, §§ 92–93).