25 years after Kosovo killings – justice prevails

10/09/24

Close relatives of 2 men who disappeared/were-killed in war crimes in Kosovo in the summer of 1999 have succeeded in their appeal from an order of the EU General Court dismissing their claims for compensation for breaches of their fundamental human rights under the ECHR and the EU Charter of Fundamental Rights.

In 2008, the EU created a Rule of Law civilian mission – Eulex Kosovo [“Eulex”] – which was made responsible for carrying out investigations into the crimes and the people who disappeared or were killed in Kosovo in 1999.  Eulex was deployed in the framework of the EU’s Common Foreign and Security Policy [“CFSP”].  A year later, the EU established a Human Rights Review Panel [the “Panel”] with responsibility for examining complaints of human rights breaches committed by Eulex in the implementation of its mandate.

The appellants filed complaints with the Panel, which led to findings that their human rights had indeed been breached by the action/inaction of Eulex Kosovo.  However, the Panel had no authority to compel Eulex to remedy its breaches.  The cases were closed following the refusal by Eulex to remedy the position.  The appellants then brought an action for non-contractual liability and damages against the Council of the EU, the European Commission and the European External Action Service.  The General Court dismissed the claim on ground of manifest lack of jurisdiction.  The appellants then brought proceedings in the London High Court for similar relief.  The proceedings were also dismissed on the basis of lack of jurisdiction. 

The appellants subsequently brought a fresh legal action before the EU General Court.  That too was dismissed for lack of jurisdiction.  That dismissal was appealed to the Court of Justice of the EU [“CJEU”].  The European Commission also lodged an appeal, despite being one of the successful parties before the General Court, on the basis that as guardian of the EU Treaties, it was of the view that the General Court had fallen into error.  7 Member States intervened in support of the appeals.  France and the Czech Republic intervened in support of the respondents.  The hearing was heard before the Grand Chamber and Advocate General Ćapeta’s Opinion was handed down on 23 November 2023.

In its judgment, the CJEU held that the inclusion of the CFSP in the EU constitutional framework meant that the basic principles of the EU legal order should apply to it.  Such principles included, in particular, respect for the rule of law and fundamental rights, values which required that EU authorities should be subject to judicial review.  However, the EU Treaties made clear that the Court of Justice did not in principle have jurisdiction in relation to the CFSP.  The CJEU nonetheless found that in the present appeals, the General Court had erred in finding that many of the acts and omissions complained of related directly to the implementation of the political or strategic choices of the CFSP and were therefore non-justiciable.  The CJEU found that the following acts/omissions fell outside of those choices and were therefore subject to judicial review:

• Insufficient investigations owing to lack of appropriate personnel;
• Absence of provisions of legal aid;
• Establishment of the Panel without the power to enforce its decisions or a remedy from breaches of human rights committed by Eulex;
• Failure of Eulex to take remedial action, despite the findings of the Panel being brought to its attention; and
• Misuse or abuse of executive power by the Council and the European External Action Service.

The case has now been referred back to the General Court.

Read the full judgement here.