Verica Tomanovic v The European Union
| Jurisdiction | England & Wales |
| Judge | Mr Justice Murray |
| Judgment Date | 13 February 2019 |
| Neutral Citation | [2019] EWHC 263 (QB) |
| Docket Number | Case No: HQ 18X02173 |
| Court | Queen's Bench Division |
| Date | 13 February 2019 |
[2019] EWHC 263 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Murray
Case No: HQ 18X02173
Mr Becket Bedford and Professor Panos Koutrakos (instructed by Savic & Co Solicitors) for the Claimants
Mr Nicholas Khan QC (instructed by the European Commission, assisted by Langleys Solicitors LLP) for the Defendants
Hearing dates: 28 and 29 November 2018
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.
I have before me an application by the European Commission on behalf of the first, second and third defendants seeking:
i) to set aside the service of the claim form and accompanying particulars of claim issued by the claimants on 14 June 2018 against the second and third defendants; and
ii) a declaration that this court has no jurisdiction to hear the claim brought against the first, second and third defendants.
The claim is brought by eight individuals who are immediate family members of nine individuals who were tortured, killed or made to disappear, it is suspected, because they were ethnic Serbs. These crimes occurred during the course of war and inter-ethnic violence in Kosovo between June 1999 and July 1999 and, in one case, March 2000. It is not alleged that any of the defendants was in any way responsible for the crimes themselves. The claim is based on the alleged failure of the fourth defendant, the European Union Rule of Law Mission in Kosovo, known as “EULEX KOSOVO” or simply “EULEX”, to investigate the crimes properly or at all.
Shortly before the hearing, the claimants indicated that they were discontinuing their claim against EULEX. Further references in this judgment to “the defendants” are to the first three defendants only.
By their claim, the claimants are seeking:
i) a declaration that the defendants are in violation of the claimants' human rights under Articles 2, 4 and 47 of the Charter of Fundamental Rights of the European Union (“the Charter”) and Articles 2, 3 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) to the extent that those Articles apply as general principles of the law of the European Union (“EU”) under Article 6(3) of the Treaty on European Union (“the TEU”) for their failure to investigate and prosecute properly, or at all, war crimes, inter-ethnic crimes or other serious crimes committed against their family members; and
ii) damages, including aggravated and exemplary damages, for those human rights violations.
During the course of the hearing Mr Becket Bedford, counsel for the claimants, made it clear that the claimants were not seeking a declaration under Article 265 of the Treaty on the Functioning of the European Union (“TFEU”), which, among other things, permits, subject to certain conditions, a natural or legal person to bring an action before the Court of Justice to establish that an EU institution, body, office or agency has failed to act. I do not, therefore, address in this judgment submissions made on behalf of the defendants that the claimants have failed to satisfy the requirements of Article 265 TFEU in relation to this action. I note, however, that if this claim were to proceed, it would be necessary to clarify the legal basis on which the claimants are seeking declaratory relief from this court.
The European Commission is acting on behalf of the defendants in these proceedings, represented by Mr Nicholas Khan QC, who is a member of the Legal Service of the Commission. The defendants' case on jurisdiction, in a nutshell, is as follows:
i) Of the defendants, only the first defendant, the EU, has legal personality under English law. For that reason, the service of the claim form on the second and third defendants should be set aside.
ii) Against the EU, jurisdiction as to declaratory relief lies exclusively with the Court of Justice of the European Union (“the Court of Justice”), comprised of the Court of Justice (“the CJEU”) and the General Court (“the GCEU”) or, if that is not accepted, in any event this court does not have the power to grant the declaratory relief sought. Jurisdiction to grant damages against the EU for non-contractual liability lies exclusively with the Court of Justice. Accordingly, the application made by the defendants should be granted. If that is not accepted by the court, the court should not determine the issue in the claimants' favour without first making a reference to the Court of Justice under Article 267 TFEU.
In this judgment, a reference to “the Treaties” means the TEU and the TFEU.
Background
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. It is not necessary for present purposes to attempt to set out the full background supporting the claim that the claimants seek to bring against the defendants. I will merely attempt to sketch out as briefly as possible the principal elements, so that this jurisdictional dispute can be seen in its proper context.
During the course of armed conflict that began in 1998 in Kosovo between Serbian forces on one side and the Kosovo Liberation Army and other Kosovo Albanian armed groups on the other side and following the failure of international efforts to resolve the conflict, the North Atlantic Treaty Organisation (“NATO”) began air strikes against the Federal Republic of Yugoslavia (“FRY”) on 24 March 1999. The air strikes ended on 8 June 1999 when the FRY agreed to withdraw its forces from Kosovo.
On 10 June 1999 the Security Council of the United Nations (“UN”) adopted its Resolution 1244 (1999) (“Resolution 1244”), authorising the establishment of KFOR, the international security force in Kosovo led by NATO, and the establishment of UNMIK, the international civil presence tasked with providing an interim civil administration in Kosovo to carry out various responsibilities set out in Resolution 1244 to establish and oversee the development of provisional democratic self-governing institutions in Kosovo to allow for a return to peace, stability and normality for its inhabitants. UNMIK assumed, among other things, responsibility for the administration of justice. A Special Representative of the UN Secretary General (“SRSG”), appointed in consultation with the Security Council, was given authority to control UNMIK and was mandated to coordinate closely with KFOR to ensure that both UNMIK and KFOR operated towards the same goals in a mutually supportive manner.
On 4 February 2008 EULEX was established by the Council of the European Union (“the EU Council”) by Council Joint Action 2008/124/CFSP on the European Rule of Law Mission in Kosovo, EULEX Kosovo [2008] OJ L42/92 (“the EULEX Joint Action”). This decision of the EU Council was taken in the context of the leading role the EU was playing in relation to the resolution of the crisis in Kosovo and the region, given the European ramifications of the crisis and their relevance to the objectives of the EU's common foreign and security policy (“CFSP”) under Article 11 TEU, as it then was (now Article 24 TEU). Accordingly, the establishment and activities of EULEX fall within the scope of the CFSP provisions of the TEU. Title V of the TEU deals with the EU's external action (foreign affairs policy). Chapter 2 of Title V (Articles 23 to 46) of the TEU sets out the principal provisions governing the CFSP.
On 9 December 2008 UNMIK's responsibility with regard to police and justice in Kosovo ended with EULEX assuming full operational control in the area of rule of law. UNMIK and EULEX agreed handover arrangements in relation to cases, files and related documents involving on-going investigations, prosecutions and other activities undertaken by international judges, prosecutors and police who had been acting for UNMIK.
The EULEX Joint Action was amended by the EU Council on a number of occasions, most notably, in 2014 and 2018 to reflect and promote a transition of EULEX's responsibilities and activities to the national authorities in Kosovo. The executive authority of EULEX under the EULEX Joint Action, as amended in 2014, including its mandate in relation to criminal justice, ended on 8 June 2018.
In 2006 the SRSG established a panel of independent experts, the Human Rights Advisory Panel (“the HRAP”), to examine complaints brought to it by any person or group of individuals of alleged human rights violations by or attributable to UNMIK in relation to the period 2005 to 2008, and to issue opinions making recommendations to the SRSG for action based on the HRAP's findings. The HRAP was comprised of independent experts. It issued its final report and ceased operations in 2016. The HRAP's opinions were advisory only. The HRAP had no powers to make binding recommendations or to enforce any type of sanction in relation to any human rights violations it found.
On 25 April 2013 the HRAP issued its opinion in relation to a complaint brought by the first claimant in relation to the disappearance of her husband, Dr Andrija Tomanovič, on 24 June 1999. The HRAP found that there had been a violation by UNMIK of the rights of the victim and his next-of-kin under Articles 2 and 3 of...
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