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Case of Markovic‘ and Others v. Italy, Judgment of the Grand Chamber of the European Court of Human Rights, 14 December 2006
Paolo De Stefani
The Italian Judge of the European Court of Human Rights, Gustavo Zagrebelsky, was probably right when he wrote that the judgement in the Markovic‘ case (14 December 2006) «strike[d] a blow at the very foundation of the Convention». By deciding not to sanction the cursory way by which the Italian Cassation stroke down as inadmissible at a preliminary stage the tort claim presented by some Serbian citizens before a civil court in Rome, the Strasbourg judges have not properly respected – it is argued – their role of judicial watchdog of the rule of law.
In June 2001, the Italian Cassation rejected the claim of the relatives of some victims of the NATO bombing of Belgrade Radio-TV building (in 1999), maintaining that the participation to the NATO military campaign and all the decisions taken by the Italian government in that framework were acts of political nature, which no Italian judge could investigate for the purpose of providing reparations to individuals that might have been affected by the adverse consequences of the war. The European Court, with a majority of ten votes against seven, endorsed the interpretation of the Italian Cassation court, holding that no violation of Article 6 of the European Convention on Human Rights (right to a fair hearing before a tribunal for the determination of civil rights and obligations) was committed by Italy.
The Court’s conclusions are open to criticism, because the procedure adopted by the Italian judiciary (an urgent order of the supreme court) and the motivation for rejecting the claim (heavy reliance was given to the act of state doctrine) paid very little attention to the importance of offering a fair and comprehensive assessment of the issue raised in the controversy.