The claimants were immediate family members of ethnic Serbs who had been killed, or had been abducted never to be seen again, in the course of the violence that took place in Kosovo in 1999 and 2000. In 2008, the Council of the European Union by Joint Action 2008/124/CPFSP established a European Rule of Law Mission “(EULEX”) in Kosovo, one of the task of which was to ensure that cases of inter-ethnic crimes and other serious crimes were properly investigated, prosecuted, adjudicated and enforced according to the applicable law. Prosecutors were seconded from their home states to EULEX, where they worked alongside local Kosovan public prosecutors within the Special Prosecution Office of the Republic of Kosovo (“SPRK”), an independent prosecution service operating under the law of Kosovo. During the period January 2013 to March 2016 the head of SPRK was an individual with dual United Kingdom and Canadian nationality, who had been seconded to the SPRK by the United Kingdom after being nominated and vetted by the defendant. By the terms of the Joint Action, the UK was responsible for “answering any claims linked to the secondment … concerning [that individual]”. The claimants brought a claim against the defendant alleging that the head of SPRK had failed to investigate the offences that had been committed against their family members, in breach of the obligation to investigate unlawful killing and abduction that arose under section 6 of the Human Rights Act 1998 read with articles 2 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and that the defendant was liable since it was the head of the SPRK’s employer and had seconded him to work as a prosecutor in Kososvo. The defendant applied for summary judgment in its favour, contending, inter alia, (i) that the claimants were not within the jurisdiction of the UK for the purposes of article 1 of the Convention so as to permit a claim under the 1998 Act; (ii) that, in any event, the SPRK head’s conduct of his official functions was not attributable to the UK; and, moreover, (iii) the proceedings amounted to an abuse of process on the grounds of res judicata, since the issues which arose could and should have been litigated in earlier proceedings which the claimants had brought against the Ministry of Defence for breach of articles 2 and 3 of the Convention, in which the claim had been dismissed and permission to appeal refused.
On the application—
Held, application granted. Claim dismissed. (1) While the word “jurisdiction” in article 1 of the Convention was not limited to territorial jurisdiction and could, in certain limited circumstances, extend to events outside the state’s territory, including circumstances of “state agent authority and control”, no exercise of extra-territorial jurisdiction was established in the present case, where the UK was not carrying out executive or judicial functions in Kosovo through employees of the defendant acting as prosecutors and, further, the necessary element of the exercise of control by the UK over the claimants or their relatives was not present. Where the relevant legal framework was such that the UK had no power to exercise any direction or control over the SPRK head in the conduct of his prosecutorial functions, and there was no evidence that it had none the less sought to do so, the fact that he was employed and paid by the defendant, and was subject to a residual disciplinary control by it, did not come close to establishing that the UK exercised jurisdiction in Kosovo for the purpose of article 1 of the Convention. Nor was there any evidence that Kosovo or EULEX had consented to, or invited, or acquiesced in the exercise by the UK of a prosecutorial authority within Kosovo, that being an essential feature that had to be present before jurisdiction by that route could be established. The fact that the UK was responsible under the Joint Action for answering any claims linked to the SPRK head’s secondment did not mean that the SPRK head, by undertaking his prosecutorial functions was exercising any form of UK jurisdiction in respect of the claimants or anyone else. It followed that the UK was not exercising jurisdiction over the claimants in Kosovo within the meaning of article 1. Accordingly, the claimants had no real prospect of success on their claims and, there being no other compelling reason why the claim should proceed to trial, summary judgment would be entered for the defendant (paras 6790–100, 155, 162, 163).
Per curiam. (i) Even if the UK were exercising jurisdiction in Kosovo, the conduct complained of must be attributable to the UK before the UK can have legal responsibility for it. Since the head of SPRK was seconded to EULEX in a manner which did not give the UK any control over the overall mission of EULEX or SPRK, far less any ability to direct of control the SPRK head in his prosecutorial functions, there was neither ultimate control nor operational control by the UK and thus the SPRK’s head’s conduct is not attributable to the UK (paras 103, 108, 109, 155, 163).
(ii) In any event, the present claim is an abuse of process because the issues raised could and should have been raised in the earlier proceedings against the Ministry of Defence, in circumstances where those proceedings were treated by all parties as test case litigation on the basis that the outcome would apply to other litigants in a like situation, there being no practical distinction in that regard between those claimants who were parties to the earlier litigation and those who were not, and where there is a clear connection, and significant overlap, between the subject matter of the two sets of proceedings (paras 135, 143, 146, 147, 150, 156, 163).
Fergus Randolph QC (instructed by Savic & Co) for the claimants.
Sir James Eadie QC, Brendan McGurk and Amy Sander (instructed by Treasury Solicitor) for the defendant.