Kosovan victims to appeal summary judgment decision

06/12/19

In a judgment handed down yesterday, the High Court ordered summary judgment to be entered against eight ethnic Serbian claimants, who are all related to victims of the conflict in Kosovo some 20 years ago.  Those victims were killed and/or disappeared in the conflict and their deaths/disappearance were never investigated.   As the Court in related litigation said,  “the circumstances giving rise to this claim are tragic and distressing. The emotional suffering of the claimants as a result of the crimes committed against their family members cannot be imagined.” 

The claims were brought against the Foreign & Commonwealth Office on the basis that one of its employees was seconded to the European Rule of Law Mission in Kosovo [“EULEX”] as Head of the Special Prosecution Office of the Republic of Kosovo [“SPRK”].  The Claimants alleged that the FCO through its seconded employee had breached their Article 2 and 3 ECHR rights by failing to investigate the relevant war crimes.  The Human Rights Review Panel [“HRRP”] was established by the EU in order to review alleged human rights violations by EULEX in the conduct of its executive made.  It found that insofar as concerned all the Claimants, the admitted failure to investigate the war crimes by EULEX constituted breaches of inter alia Articles 2 and 3 ECHR.  The HRRP decisions were not binding on EULEX and eventually the files were closed without any investigations taking place.  The FCO did not deny the existence of the HRRP decisions but made no admission as to their contents.

The FCO sought summary judgment against the Claimants on seven grounds.  The Court found that three of those grounds were made out and given that the grounds were in the alternative, the relief sought should be granted.  The Court found in particular that the Claimants were not within the jurisdiction within the meaning of Article 1 ECHR because it had not been demonstrated that per the ECHR’s decision in Al-Skeini, the FCO exercised the requisite degree of control over the Claimants or their relatives.  The Court also held in a linked finding that the behaviour of the FCO’s seconded employee could not be attributed to the FCO.  Finally, the Court found that the litigation was an abuse of process because the claims could have been brought in previous related proceedings.  On all these points, the Claimants are seeking permission to appeal.

By way of obiter comments, the Court found that although the FCO’s secondee was immune from proceedings, there was a real prospect of establishing that any immunity for the FCO would be restricted to “legal process” in Kosovo and that accordingly, it would not be immune from proceedings in the UK.  Secondly, the Court found obiter that the Secretary of State had not discharged his burden of demonstrating that the Claimants had no reasonable prospect of success in showing that the Human Rights Act 1998 could apply to events pre-dating its entry into force – ie that it had retrospective effect.  Thirdly, the Court found obiter that the obligation under Articles 2 and 3 ECHR to carry out investigations in such circumstances was not limited to situations in which it could be shown that the Contracting State – here the UK – had or may have been in breach of a substantive (as opposed to a procedural) right.  Here it was common ground that the UK had not been involved in the relevant deaths/disappearance.  The Court found that the relevant procedural obligation – to investigate such matters – could exist as a freestanding obligation.  Finally, the Court found obiter that had the Claimants shown they had reasonable prospects of success on their claims, then summary judgment would not have been granted on the basis that the claims were timed-barred pursuant to s. 7(5) Human Rights Act.

The Court concluded its remarks by making reference to the following passage in earlier related proceedings: “I wish to record that I understand the terrible impact of such killings. I readily comprehend the feelings of the Claimants at their losses, and at the lack of any final explanation of what happened. The Court has every sympathy with the position of the Claimants.” 

The judgment is here.