KONTIC AND OTHERS V MINISTRY OF DEFENCE [2016] EWHC 2034 (QB)
Surrey Personal Injury and Child Abuse Compensation Claims – Human Rights
FACTS:-
The claims arose out of the deployment of an international force, “KFOR” in Kosovo in around 1999. The three Claimants were widows of Serbs abducted or murdered in or around Pristina between 16 June and 5 July 1999. One Claimant also lost her teenage son. They alleged that British forces, which were part of KFOR failed to protect their family members or properly investigate the killings. The pleaded causes of action in this case consisted of alleged breaches of Articles 2,3,8 and 13 of the European Convention. The remaining part of the case was framed in terms of a breach of the law applying to Kosovo, either by incorporation into domestic Kosovan law of a range of international conventions, or as breaches of the Yugoslav/Serbian Law of Contracts and Torts.
The following preliminary issues fell for determination:-
JUDGMENT:-
Mr Justice Irwin went over the facts of the case and he considered the terms of UNSCR 1244. He also considered a Military Technical Agreement (“MTA”) which provided for the withdrawal from Kosovo of Serb forces and which was annexed to UNSCR 1244. A statement had been given by General Sir Michael Jackson who held operational command of KFOR in Pristina. The biggest threat to peace was the Kosovo Liberation Army, some of whose elements were out of control. There was also great resentment amongst civilians of Albanian origin towards Serbs for which reason KFOR put guards on Serb institutions and housing estates. Irwin J looked at the facts around the deaths in the Claimants’ cases. Zoran Kontick had been stabbed in the family home, having received threats to kill and having notified the KFOR authorities. His death was investigated by KFOR military police and later UNMIK representatives. Dimitriye Milenkovic and his son were abducted and shot. Again this was investigated by KFOR police and UNMIK representatives. Dr Tomanovic worked at a hospital in Pristina and was an influential figure in the Serb community. He was abducted and his body was never found. Again there had been an investigation by the authorities.
Attributability
Irwin J looked at the first issue in the case, the attributability of the alleged acts and omissions, either to the UN or the United Kingdom. He referred to a decision of the Grand Chamber of the European Court of Human Rights on the issue of attribution of action by KFOR, Behrami and Saramati v France and Norway (2007) 45 EHRR SE10, two other cases derived from the conflict in Kosovo. The court had reached the clear view that those KFOR actions which were within their security remit were attributable to the UN. Since the UN was an organisation of universal jurisdiction fulfilling its imperative collective security objective and was not a party to the European Convention, the ECtHR was not competent ratione personae to review UN actions. It was common ground in the instant case that if the actions or omissions here were attributable to the UN, then the actions against the MOD would fail.
Irwin J also considered the decision of the House of Lords in R (Al-Jedda) v Secretary of State for Defence [2008] 1 AC 332. The House was considering the case of the actions of British forces in Iraq, forming part of a multi-national force, acting under the authority of UNSCR 1546. In that case, having approved the basis for the decision in Behrami, the House of Lords found in favour of attributability to the United Kingdom. When the Al-Jedda case came before the ECtHR in Al-Jedda v United Kingdom (2011) 53 EH44 23, the Grand Chamber reached conclusions as to the attributability of the acts of the multinational forces in Iraq, consistently with the House of Lords. In the recent case of Serda Mohammed and Others v Secretary of State for Defence [2015] EWCA Civ 843, attributability was considered in the context of detention in Afghanistan by UK armed forces acting as part of the International Security Assistance Force ("ISAF"), a multinational force established by resolution of the UN Security Council and under NATO command to assist the Afghan government. The Court of Appeal supported the approach taken in Behrami.
Irwin J said that there was no evidence before him bearing on the KFOR command structure or the line of command through to the United Nations which altered the picture as it was before the ECtHR when the case of Behrami was heard. Nonetheless the Claimants' bold submission was that Behrami was wrong. KFOR was not a UN entity or creation. UNSCR 1244 demonstrated a clear structural distinction between UNMIK and KFOR. KFOR was a creation of the Military Technical Agreement “MTA”. between KFOR and the Governments of the Federal Republic of Yugoslavia, which was subsequently authorised by UNSCR 1244. The UK retained control over its own contingent in day to day operations in respect of policing and ensuring a safe environment. There had also been commentary from the International Law Commission, which had said that the decisive question in relation to the attribution of a given conduct appeared to be who had effective control over the conduct in question. There had also been academic criticism of the decision in Behrami.
The Defendant said that the weight of authority favoured the proposition that the attributability of the alleged acts and omissions did not fall on the United Kingdom, relying on section 2 of the Human Rights Act 1998, which said that any court determining a question of a convention right had to take into account a decision of the European Court of Human Rights. At this point, the Claimants raised an interesting argument. They said that the international law governing the question of attributabilty was not a question of interpretation of the European Convention on Human Rights. It was a question of international law. The pleaded causes of action in this case consisted of alleged breaches of Articles 2,3,8 and 13 of the European Convention. The remaining part of the case was framed in terms of a breach of the law applying to Kosovo, either by incorporation into domestic Kosovan law of a range of international conventions, or as breaches of the Yugoslav/Servian Law of Contracts and Torts. Irwin J said that the decision on attributability in the Behrami case was a question which had arisen in connection with the Convention Rights. Consequently, Section 2 of the 1998 Act applied with full force to the Convention claims.
Irwin J would not depart from the decision in Behrami. There had been cases where English courts had distinguished the position on attribution, but these were cases where actions or decisions were taken on the ground. In this case, the Claimants’ relatives had not suffered kidnap, mistreatment or death at the hands of KFOR. The failure complained of against the Defendant was a much broader failure to create secure and peaceful conditions quickly in Kosovo. The relevant acts and omissions complained of were as a matter of law attributable to the United Nations and not to the United Kingdom.
That disposed of the Claimants’ cases. Nonetheless Irwin J would consider the remaining preliminary points, beginning with the issue of whether the Claimants were within the jurisdiction of the UK for the purposes of Article 1 ECHR.
Were the Claimants within the jurisdiction of the UK for the purposes of Article 1 of the European Convention on Human Rights “ECHR”
The ECtHR had recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a contracting state outside its own territorial boundaries. Irwin J considered the decision in Al-Skeini v United Kingdom (2011) 53 EHRR 18) a subsequent decision of the UK Supreme Court, Smith (Susan) v Ministry of Defence [2014] AC 52 and a further decision from the ECtHR, Jaloud v Netherlands (2015) 60 EHRR 29. The question was whether the Defendant was exercising effective control of the area in which the acts and omissions took place, with such a degree of control so as to be in a position effectively to guarantee the gamut of Convention rights. He said that it was absured to argue that KFOR was, or could be expected to be, in effective control of central Kosovo within a matter of days of the military takeover pursuant to the MTA. Effective control of an area as the foundation for an extension of the territorial jurisdiction of the European Convention, could not arise from the fact that the forces of a Member State were the only significant force in that area. In this case, there was never any physical control by the Defendant by the Claimants’ relatives. Consequently the Clai,amts were not within the jurisdiction of the European Convention at the material times.
Did an operational protective duty arise under Articles 2 and 3 ECHR? Did an investigative duty arise under Articles 2 or 3 ECHR and was there a continuing duty to investigate 16 years later?
Irwin J said that having concluded that there was no jurisdiction under the Convention, it followed that no operational protective duty arose under Articles 2 or 3. Moreover, in the conditions agreed to be prevailing in Kosovo in the relevant weeks in June and July 1999, it was inconceivable that such a general duty could arise for an international force brought in to attempt stabilisation in such circumstances.
Investigative duties could arise where a Member State carried the full range of duties commensurate with a territorial jurisdiction or where effective control of an area was established. However there had to be a trigger for an investigative obligation to arise. Irwin J had considered whether the acceptance of an investigative role by those military police officers attached to KFOR could, without more, fix the United Kingdom with an investigative obligation pursuant to Articles 2 and 3. In his view, there arose no freestanding obligation under the Convention. Even if the actions of KFOR were attributable to the United Kingdom, the engagement of the military police from KFOR was quite insufficient to import jurisdiction. Therefore no investigative duty arose imder Articles 2 or 3 of the Convention.
In relation to whether there was a continuing duty to investigate, it was inconceivable that such a duty arising during the short period when KFOR represented authority in Kosovo could be thought to be open ended in time. Irwin J said that he had been referred to no authority which supported a continuing obligation to investigate in circumstances comparable to this claim. The Defendant had not played a relevant role since UNMIK took over responsibilities for civil administration in Kosovo in the autumn of 1999.
Were Articles 8 and 13 of the ECHR engaged?
For the reasons already set out, no duties were owed under Articles 8 and 13.
Did time start to run from an “instantaneous act” of the authorities: and/or was there a continuing violation of the convention for the purpose of extending the one year limitation period?
For the reasons already given, Irwin J could see no basis for jurisdiction; no instantaneous act of the authorities and no basis for a continuous violation of the Convention. There was therefore no basis for any extension of the one year limitation period under the Human Rights Act 1998.
Did the Human Rights Act apply to the deaths and disappearances given the fact that the Act was not retrospective and the deaths occurred prior to the 2nd October 2000?
The Claimants did not in fact argue for retrospective effect. Their claim was based on the premise of existing detachable or freestanding investigative obligations arising from adherence to the Convention, and which persisted through to the commencement of the Act. Irwin J referred to a number of cases on this issue:-
The main principle was that the Human Rights Act does not have retrospective effect. There might be circumstances where an investigative obligation cold arise and continue, even though the deaths from which that obligation arises occurred before the coming into force of the Act. That depended on the issue of connection to the trigger events.
The Claimants also argued that irrespective of whether the Human Rights Act applied to the Defendant’s duties under Articles 2 and 3 of the Convention prior to the commencement of the Human Rights Act, the Defendant was not absolved of any substantive obligation under Articles 2 and 3 or equivalent obligations under international law. The Claimants recited the Geneva Conventions, the 1992 UN Declaration for the Protection of all Persons from Enforced Disappearances, and other international conventions. The Claimants relied on the case of Trendex Trding Corp v Central Bank of Nigeria [1977] QB 529 where Lord Denning stated that the rules of international law were incorporated into English law, unless they were in conflict with an act of Parliament. There was support also in the decision of the Supreme Court in R (Keyu).
Irwin J said that these arguments could not succeed. The Claimants had pleaded their case under the HRA, not any freestanding common law right with equivalent content. International law was not part of domestic law (R (SG and Others) v Secretary for Work and Pensions [2015] UKSC 16). Furthermore the European Convention was not an enforceable set of obligations in domestic law. The HRA would not apply to the deaths and disappearances which were the subject of this complaint.
Were the claims barred in the English Courts as a matter of international law by reason of the immunity conferred on the Defendant under UN Security Council Resolution 1244 (“UNSCR 1244”) and the United Nations Mission in Kosovo “UNMIK” Regulation 2000/47? Alternatively, were the claims barred as an abuse of the process of the court as a matter of procedural law?
There were two critical documents bearing on this issue to be found in the Joint Declaration of the Special Representative of the Secretary General and the Commander of the Kosovo force adopted on 17.8.00 and Regulation 2000/47. The Joint Declaration declared immunity for UNMIK and KFOR. Regulation 2000/47 had empowered UNMIK to suspend local laws, and it had become part of the substantive law of Kosovo. KFOR had also set a draft Theatre Claims Policy, which set out procedures for the processing of claims by those harmed by negligent or other wrongful conduct. Irwin J had considered expert evidence on local laws. He then considered the Particulars of Claim. There was no Particular linked in any identifiable way to the specific events leading to the death or abduction of any of the Claimants’ relatives. There was no action based on the actions of individuals for which the Defendant was vicariously liable.
Irwin J was not impressed by the arguments advanced by the Defendants to the effect that there was a local KFOR compensation scheme. There was no evidence to the effect that such a scheme was a practical opportunity for individuals to gain compensation. The displacement of individuals and the dislocation of communications were overwhelming and made it very difficult for people to be aware of that scheme. So there was no abuse of process.
The Defendant was immune from action for its direct liability, as opposed to vicarious liability, for allegedly tortious acts and omissions. That was clearly the intention of the agreement and the regulation. This immunity did not extend to the European Convention, and so Irwin J saw no reason why the immunity should not be given its intended effect. Clearly, if any matter currently framed as a breach of the law of Kosovo might be established as a breach of the Convention, then subject to the other matters dealt with in this judgment, this immunity would not operate to prevent action against the Defendant.
Surrey Personal Injury and Child Abuse Compensation Claims – Human Rights
FACTS:-
The claims arose out of the deployment of an international force, “KFOR” in Kosovo in around 1999. The three Claimants were widows of Serbs abducted or murdered in or around Pristina between 16 June and 5 July 1999. One Claimant also lost her teenage son. They alleged that British forces, which were part of KFOR failed to protect their family members or properly investigate the killings. The pleaded causes of action in this case consisted of alleged breaches of Articles 2,3,8 and 13 of the European Convention. The remaining part of the case was framed in terms of a breach of the law applying to Kosovo, either by incorporation into domestic Kosovan law of a range of international conventions, or as breaches of the Yugoslav/Serbian Law of Contracts and Torts.
The following preliminary issues fell for determination:-
- Were the acts and omissions as alleged attributable to the United Kingdom or attributable to the UN?
- Were the Claimants within the jurisdiction of the UK for the purposes of Article 1 of the European Convention on Human Rights “ECHR”
- Did an operational protective duty arise under Articles 2 and 3 ECHR and did an investigative duty arise under Articles 2 or 3 ECHR and was there a continuing duty to investigate 16 years later?
- Were Articles 8 and 13 of the ECHR engaged?
- Did time start to run from an “instantaneous act” of the authorities: and/or was there a continuing violation of the convention for the purpose of extending the one year limitation period?
- Did the Human Rights Act apply to the deaths and disappearances given the fact that the Act was not retrospective and the deaths occurred prior to the 2nd October 2000?
- Were the claims barred in the English Courts as a matter of international law by reason of the immunity conferred on the Defendant under UN Security Council Resolution 1244 (“UNSCR 1244”) and the United Nations Mission in Kosovo “UNMIK” Regulation 2000/47? Alternatively, were the claims barred as an abuse of the process of the court as a matter of procedural law?
JUDGMENT:-
Mr Justice Irwin went over the facts of the case and he considered the terms of UNSCR 1244. He also considered a Military Technical Agreement (“MTA”) which provided for the withdrawal from Kosovo of Serb forces and which was annexed to UNSCR 1244. A statement had been given by General Sir Michael Jackson who held operational command of KFOR in Pristina. The biggest threat to peace was the Kosovo Liberation Army, some of whose elements were out of control. There was also great resentment amongst civilians of Albanian origin towards Serbs for which reason KFOR put guards on Serb institutions and housing estates. Irwin J looked at the facts around the deaths in the Claimants’ cases. Zoran Kontick had been stabbed in the family home, having received threats to kill and having notified the KFOR authorities. His death was investigated by KFOR military police and later UNMIK representatives. Dimitriye Milenkovic and his son were abducted and shot. Again this was investigated by KFOR police and UNMIK representatives. Dr Tomanovic worked at a hospital in Pristina and was an influential figure in the Serb community. He was abducted and his body was never found. Again there had been an investigation by the authorities.
Attributability
Irwin J looked at the first issue in the case, the attributability of the alleged acts and omissions, either to the UN or the United Kingdom. He referred to a decision of the Grand Chamber of the European Court of Human Rights on the issue of attribution of action by KFOR, Behrami and Saramati v France and Norway (2007) 45 EHRR SE10, two other cases derived from the conflict in Kosovo. The court had reached the clear view that those KFOR actions which were within their security remit were attributable to the UN. Since the UN was an organisation of universal jurisdiction fulfilling its imperative collective security objective and was not a party to the European Convention, the ECtHR was not competent ratione personae to review UN actions. It was common ground in the instant case that if the actions or omissions here were attributable to the UN, then the actions against the MOD would fail.
Irwin J also considered the decision of the House of Lords in R (Al-Jedda) v Secretary of State for Defence [2008] 1 AC 332. The House was considering the case of the actions of British forces in Iraq, forming part of a multi-national force, acting under the authority of UNSCR 1546. In that case, having approved the basis for the decision in Behrami, the House of Lords found in favour of attributability to the United Kingdom. When the Al-Jedda case came before the ECtHR in Al-Jedda v United Kingdom (2011) 53 EH44 23, the Grand Chamber reached conclusions as to the attributability of the acts of the multinational forces in Iraq, consistently with the House of Lords. In the recent case of Serda Mohammed and Others v Secretary of State for Defence [2015] EWCA Civ 843, attributability was considered in the context of detention in Afghanistan by UK armed forces acting as part of the International Security Assistance Force ("ISAF"), a multinational force established by resolution of the UN Security Council and under NATO command to assist the Afghan government. The Court of Appeal supported the approach taken in Behrami.
Irwin J said that there was no evidence before him bearing on the KFOR command structure or the line of command through to the United Nations which altered the picture as it was before the ECtHR when the case of Behrami was heard. Nonetheless the Claimants' bold submission was that Behrami was wrong. KFOR was not a UN entity or creation. UNSCR 1244 demonstrated a clear structural distinction between UNMIK and KFOR. KFOR was a creation of the Military Technical Agreement “MTA”. between KFOR and the Governments of the Federal Republic of Yugoslavia, which was subsequently authorised by UNSCR 1244. The UK retained control over its own contingent in day to day operations in respect of policing and ensuring a safe environment. There had also been commentary from the International Law Commission, which had said that the decisive question in relation to the attribution of a given conduct appeared to be who had effective control over the conduct in question. There had also been academic criticism of the decision in Behrami.
The Defendant said that the weight of authority favoured the proposition that the attributability of the alleged acts and omissions did not fall on the United Kingdom, relying on section 2 of the Human Rights Act 1998, which said that any court determining a question of a convention right had to take into account a decision of the European Court of Human Rights. At this point, the Claimants raised an interesting argument. They said that the international law governing the question of attributabilty was not a question of interpretation of the European Convention on Human Rights. It was a question of international law. The pleaded causes of action in this case consisted of alleged breaches of Articles 2,3,8 and 13 of the European Convention. The remaining part of the case was framed in terms of a breach of the law applying to Kosovo, either by incorporation into domestic Kosovan law of a range of international conventions, or as breaches of the Yugoslav/Servian Law of Contracts and Torts. Irwin J said that the decision on attributability in the Behrami case was a question which had arisen in connection with the Convention Rights. Consequently, Section 2 of the 1998 Act applied with full force to the Convention claims.
Irwin J would not depart from the decision in Behrami. There had been cases where English courts had distinguished the position on attribution, but these were cases where actions or decisions were taken on the ground. In this case, the Claimants’ relatives had not suffered kidnap, mistreatment or death at the hands of KFOR. The failure complained of against the Defendant was a much broader failure to create secure and peaceful conditions quickly in Kosovo. The relevant acts and omissions complained of were as a matter of law attributable to the United Nations and not to the United Kingdom.
That disposed of the Claimants’ cases. Nonetheless Irwin J would consider the remaining preliminary points, beginning with the issue of whether the Claimants were within the jurisdiction of the UK for the purposes of Article 1 ECHR.
Were the Claimants within the jurisdiction of the UK for the purposes of Article 1 of the European Convention on Human Rights “ECHR”
The ECtHR had recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a contracting state outside its own territorial boundaries. Irwin J considered the decision in Al-Skeini v United Kingdom (2011) 53 EHRR 18) a subsequent decision of the UK Supreme Court, Smith (Susan) v Ministry of Defence [2014] AC 52 and a further decision from the ECtHR, Jaloud v Netherlands (2015) 60 EHRR 29. The question was whether the Defendant was exercising effective control of the area in which the acts and omissions took place, with such a degree of control so as to be in a position effectively to guarantee the gamut of Convention rights. He said that it was absured to argue that KFOR was, or could be expected to be, in effective control of central Kosovo within a matter of days of the military takeover pursuant to the MTA. Effective control of an area as the foundation for an extension of the territorial jurisdiction of the European Convention, could not arise from the fact that the forces of a Member State were the only significant force in that area. In this case, there was never any physical control by the Defendant by the Claimants’ relatives. Consequently the Clai,amts were not within the jurisdiction of the European Convention at the material times.
Did an operational protective duty arise under Articles 2 and 3 ECHR? Did an investigative duty arise under Articles 2 or 3 ECHR and was there a continuing duty to investigate 16 years later?
Irwin J said that having concluded that there was no jurisdiction under the Convention, it followed that no operational protective duty arose under Articles 2 or 3. Moreover, in the conditions agreed to be prevailing in Kosovo in the relevant weeks in June and July 1999, it was inconceivable that such a general duty could arise for an international force brought in to attempt stabilisation in such circumstances.
Investigative duties could arise where a Member State carried the full range of duties commensurate with a territorial jurisdiction or where effective control of an area was established. However there had to be a trigger for an investigative obligation to arise. Irwin J had considered whether the acceptance of an investigative role by those military police officers attached to KFOR could, without more, fix the United Kingdom with an investigative obligation pursuant to Articles 2 and 3. In his view, there arose no freestanding obligation under the Convention. Even if the actions of KFOR were attributable to the United Kingdom, the engagement of the military police from KFOR was quite insufficient to import jurisdiction. Therefore no investigative duty arose imder Articles 2 or 3 of the Convention.
In relation to whether there was a continuing duty to investigate, it was inconceivable that such a duty arising during the short period when KFOR represented authority in Kosovo could be thought to be open ended in time. Irwin J said that he had been referred to no authority which supported a continuing obligation to investigate in circumstances comparable to this claim. The Defendant had not played a relevant role since UNMIK took over responsibilities for civil administration in Kosovo in the autumn of 1999.
Were Articles 8 and 13 of the ECHR engaged?
For the reasons already set out, no duties were owed under Articles 8 and 13.
Did time start to run from an “instantaneous act” of the authorities: and/or was there a continuing violation of the convention for the purpose of extending the one year limitation period?
For the reasons already given, Irwin J could see no basis for jurisdiction; no instantaneous act of the authorities and no basis for a continuous violation of the Convention. There was therefore no basis for any extension of the one year limitation period under the Human Rights Act 1998.
Did the Human Rights Act apply to the deaths and disappearances given the fact that the Act was not retrospective and the deaths occurred prior to the 2nd October 2000?
The Claimants did not in fact argue for retrospective effect. Their claim was based on the premise of existing detachable or freestanding investigative obligations arising from adherence to the Convention, and which persisted through to the commencement of the Act. Irwin J referred to a number of cases on this issue:-
- Re McKerr [2004] UKHL 12
- Re McCaughey [2011] UKSC 20
- R (Keyu) v Secretary of State for the Foreign and Commonwealth Office [2015] UKSC 69
The main principle was that the Human Rights Act does not have retrospective effect. There might be circumstances where an investigative obligation cold arise and continue, even though the deaths from which that obligation arises occurred before the coming into force of the Act. That depended on the issue of connection to the trigger events.
The Claimants also argued that irrespective of whether the Human Rights Act applied to the Defendant’s duties under Articles 2 and 3 of the Convention prior to the commencement of the Human Rights Act, the Defendant was not absolved of any substantive obligation under Articles 2 and 3 or equivalent obligations under international law. The Claimants recited the Geneva Conventions, the 1992 UN Declaration for the Protection of all Persons from Enforced Disappearances, and other international conventions. The Claimants relied on the case of Trendex Trding Corp v Central Bank of Nigeria [1977] QB 529 where Lord Denning stated that the rules of international law were incorporated into English law, unless they were in conflict with an act of Parliament. There was support also in the decision of the Supreme Court in R (Keyu).
Irwin J said that these arguments could not succeed. The Claimants had pleaded their case under the HRA, not any freestanding common law right with equivalent content. International law was not part of domestic law (R (SG and Others) v Secretary for Work and Pensions [2015] UKSC 16). Furthermore the European Convention was not an enforceable set of obligations in domestic law. The HRA would not apply to the deaths and disappearances which were the subject of this complaint.
Were the claims barred in the English Courts as a matter of international law by reason of the immunity conferred on the Defendant under UN Security Council Resolution 1244 (“UNSCR 1244”) and the United Nations Mission in Kosovo “UNMIK” Regulation 2000/47? Alternatively, were the claims barred as an abuse of the process of the court as a matter of procedural law?
There were two critical documents bearing on this issue to be found in the Joint Declaration of the Special Representative of the Secretary General and the Commander of the Kosovo force adopted on 17.8.00 and Regulation 2000/47. The Joint Declaration declared immunity for UNMIK and KFOR. Regulation 2000/47 had empowered UNMIK to suspend local laws, and it had become part of the substantive law of Kosovo. KFOR had also set a draft Theatre Claims Policy, which set out procedures for the processing of claims by those harmed by negligent or other wrongful conduct. Irwin J had considered expert evidence on local laws. He then considered the Particulars of Claim. There was no Particular linked in any identifiable way to the specific events leading to the death or abduction of any of the Claimants’ relatives. There was no action based on the actions of individuals for which the Defendant was vicariously liable.
Irwin J was not impressed by the arguments advanced by the Defendants to the effect that there was a local KFOR compensation scheme. There was no evidence to the effect that such a scheme was a practical opportunity for individuals to gain compensation. The displacement of individuals and the dislocation of communications were overwhelming and made it very difficult for people to be aware of that scheme. So there was no abuse of process.
The Defendant was immune from action for its direct liability, as opposed to vicarious liability, for allegedly tortious acts and omissions. That was clearly the intention of the agreement and the regulation. This immunity did not extend to the European Convention, and so Irwin J saw no reason why the immunity should not be given its intended effect. Clearly, if any matter currently framed as a breach of the law of Kosovo might be established as a breach of the Convention, then subject to the other matters dealt with in this judgment, this immunity would not operate to prevent action against the Defendant.