Verica Tomanovic v The Foreign and Commonwealth Office
| Jurisdiction | England & Wales |
| Judge | Mr Justice Johnson |
| Judgment Date | 05 December 2019 |
| Neutral Citation | [2019] EWHC 3350 (QB) |
| Date | 05 December 2019 |
| Docket Number | Case No: HQ17X03818 |
| Court | Queen's Bench Division |
[2019] EWHC 3350 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Johnson
Case No: HQ17X03818
Fergus Randolph QC (instructed by Savic & Co) for the Claimants
Sir James Eadie QC, Brendan McGurk and Amy Sander (instructed by the Government Legal Department) for the Defendant
Hearing date: 28 November 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
In the course of the violence that took place in Kosovo in 1999 and 2000 many people were killed or abducted never to be seen again. The Claimants are immediate family members of nine such people, all of them ethnic Serbs. There has been no investigations of the crimes, and in the case of the First Claimant she does not know what has become of her husband, with all of the anguish that brings. As Murray J observed in related proceedings ( Tomanovic and others v The European Union and others [2019] EWHC 263 (QB) at [8]):
“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 Claimants' distress and suffering is not in doubt. What is in issue is whether they have a viable legal claim against the Foreign and Commonwealth Office (“the FCO”). The Claimants say that:
(1) Mr Ratel, the Head of the Special Prosecutions Office of the Republic of Kosovo (“SPRK”) during the period January 2013 – March 2016, failed to investigate the offences that had been committed against their loved ones.
(2) This failure amounted to a breach of the obligation to investigate unlawful killing and abduction that arises under section 6 of the Human Rights Act 1998 read with articles 2 and 3 of the European Convention on Human Rights (“ECHR”).
(3) A claim lies against the FCO which was Mr Ratel's employer and had seconded him to work as a prosecutor in Kosovo.
The FCO says that the Claimants have no real prospect of succeeding in their claims for seven separate reasons:
(1) Mr Ratel is immune from legal process and that immunity cannot be circumvented by an action against the FCO.
(2) The Claimants were not within the jurisdiction of the United Kingdom (“UK”) for the purposes of article 1 ECHR so as to permit a claim under the Human Rights Act 1998.
(3) Mr Ratel's conduct of his official functions as Head of the SPRK is not attributable to the UK.
(4) The Human Rights Act 1998 is not applicable to the claim because the deaths/disappearance in question took place before that Act came into force.
(5) No investigative duty arose under articles 2 and/or 3 ECHR.
(6) The claim is res judicata and an abuse of process.
(7) The claim is time barred.
The FCO says that there is no other reason why the claim should proceed to trial, and that summary judgment should therefore be entered against the Claimants on the whole of the claim.
The Facts
The Claimants and their deceased relatives
At the heart of this case are 9 human tragedies arising out of the murders (or in one case abduction and likely murder) of Dr Andrija Tomanovic, Dimitrije Milenkovic and his son Aleksandar Milenkovic, Zoran Kontic, Predrag Todorovic, Miroljub Milovanovic, Slavko Veselinovic, Nebojsa Jovanovic and Srdjan Peric.
Dr Andrija Tomanovic: The First Claimant, Verica Tomanovic, was married to Dr Tomanovic. He was the Director of Surgery at Pristina Hospital where he had worked since 1963. He was abducted from Pristina Hospital on 24 June 1999. His body has never been found.
Dimitrije and Aleksandar Milenkovic: The Second Claimant, Snezana Milenkovic, is the widow of Dimitrije Milenkovic. They had four children, one of whom was Aleksandar who was born in May 1984. On 16 June 1999 Dimitrije and Aleksandar Milenkovic were abducted. The Second Claimant says she spoke to British troops and was told that her husband and son were alive and detained by the international peacekeeping force (“KFOR”) and that they would be released the next day. That was not correct. They had been shot. Some days later the Second Claimant identified their bodies.
Zoran Kontic: The Third Claimant, Dr Vesna Kontic, is the widow of Zoran Kontic. He was an engineer and was the production general manager of a power plant “Kosovo A, Obilic”. In 1999 they lived together in Pristina in a block of flats opposite a KFOR base. They sought help from the KFOR base and were, for a period of time, given shelter. On 1 July 1999 they left Kosovo because of the threats, but Mr Kontic was told to return to work because “British troops required assistance in restarting the power plant.” He therefore returned to the family home. On 5 July 1999 Mr Kontic was stabbed at home. According to Mr Kontic, the assailants were two named Albanian workers at the power plant. Mr Kontic died from his injuries.
Predrag Todorovic: The Fourth Claimant, Danijela Todorovic, is the widow of Predrag Todorovic. They had four children. Mr Todorovic had been employed at the Public Enterprise Pit Mines Kosovo (“the mines”). The family had moved to Obilic where they thought they would be safe. On 30 June 1999 Mr Todorovic was at home with his brother. They heard women screaming for help, saying that they were being attacked by the Kosovo Liberation Army. Mr Todorovic stepped out of his house to help. He was shot dead. The Fourth Claimant has been told that there were 30 gunshots to his body.
Miroljub Milovanovic: The Fifth Claimant, Olga Milovanovic, was the mother of Miroljub Milovanovic. He was a mechanic, also employed at the mines. On 27 June 1999 he was driving in a car with a friend. Armed men stepped out from a roadside ditch and fired several shots, killing Mr Milovanovic and his friend.
Slavko Veselinovic: The Sixth Claimant, Zlata Veselinovic, is the widow of Slavko Veselinovic. He too worked at the mines. On 13 June 1999 he was shot dead by NATO/KFOR soldiers. A CNN report states that he was killed by German KFOR troops. The Sixth Claimant has not received any communication from Germany or any other authority about the death of her husband.
Nebojsa Jovanovic: The Seventh Claimant, Zivorad Jovanovic, is the brother of Nebojsa Jovanovic. He was an electrician, also employed at the mines. On 8 July 1999 he was shot by five armed men. His family tried to take him to hospital but they were stopped by British forces. They attempted to provide medical assistance, but he died.
Srdjan Peric: The Eighth Claimant, Marika Peric, is the widow of Srdjan Peric. He was also employed at the mines. The family lived in the village of Donja Brnica, in the borough of Pristina. On 11 March 2000 Mr Peric was inspecting his land on the outskirts of the village when he was shot in the head and killed.
Each of these killings, and the disappearance of Dr Tomanovic, took place after the establishment of an international presence in Kosovo under the authority of the United Nations (“UN”). Nobody has been brought to justice for the killings/disappearance. They have not been investigated. There has been a finding (see paragraph 43 below) that the failure to investigate amounts to a breach of articles 2 and 3 ECHR. Despite extensive legal processes over many years the Claimants have not secured any substantive relief for these breaches of articles 2 and 3 ECHR. Their cases do not stand alone. Very many others (both Serbs, and those from other ethnic groups) were also killed without the assailants being apprehended and without any substantive relief for investigative failings.
UN Interim Administration Mission in Kosovo (“UNMIK”)
On 24 March 1999 NATO commenced a military air campaign in Kosovo following the failure of international diplomatic efforts to resolve the violence. On 8 June 1999 the Federal Republic of Yugoslavia agreed to withdraw its forces from Kosovo. NATO ended the air strikes.
On 10 June 1999 the UN Security Council adopted Resolution 1244. This authorised the Secretary-General, with the assistance of international organisations, to establish an international civil presence in Kosovo, UNMIK. The main responsibilities of UNMIK included the maintenance of civil law and order through the deployment of international police personnel to serve in Kosovo.
The Special Prosecution Office of the Republic of Kosovo (“SPRK”)
The SPRK is an independent prosecution service operating under the laws of Kosovo. It was established by article 1 of Law No 03/L-052 of 13 March 2008. By article 9.1(h), (k) and (l) of that Law it has competence to investigate and prosecute (amongst other crimes) crimes of murder, kidnapping and torture. Its prosecutors are a combination of Kosovo public prosecutors and EULEX prosecutors (see below), both operating under the law of 13 March 2008.
EULEX Kosovo
In 2008, so some 9 years after the disappearance of the Claimants' relatives, the Council of the EU's Joint Action 2008/124/CPFSP (“the Joint Action”) established “an European Rule of Law Mission in Kosovo, EULEX KOSOVO.”
EULEX's mission statement, by article 2 of the Joint Action, was to:
“assist the Kosovo institutions… and law enforcement agencies in their progress towards sustainability and accountability and in further developing and strengthening an independent multiethnic justice system…”
EULEX's tasks, by article 3(d) of the Joint Action, included ensuring that cases of “inter-ethnic crimes” and “other serious crimes” were...
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