AS TO THE ADMISSIBILITY OF
Application No. 38698/97 Application No. 38699/97
by Judith Helen SYKES and 9 Others Preston SALOOM and 3 Others
against the United Kingdom against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 21 May 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 11 June 1997 by
Judith Helen SYKES and 9 Others against the United Kingdom and
registered on 20 November 1997 under file No. 38698/97;
Having regard to the application introduced on 12 June 1997 by
Preston SALOOM and 3 Others against the United Kingdom and registered
on 20 November 1997 under file No. 38699/97;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are a group of British, Canadian and American
citizens. A list of the applicants is annexed to the present decision.
They are represented before the Commission by Frank H. Lefevre of The
Frank Lefevre Practice, Solicitors, Aberdeen. The facts of the
application, as submitted by the applicants' representative, may be
summarised as follows.
A. Particular circumstances of the case
On 1 August 1990 the applicants were all passengers on British
Airways flight BA 149 from Heathrow Airport, London to Kuala Lumpur via
Kuwait and Madras. The flight was scheduled to leave at 16.15 GMT but
was delayed by two hours because of technical and weather problems.
By the time the aircraft reached Kuwait, Iraq had invaded Kuwait and
after flight BA 149 landed, the airport was closed. The passengers
were detained in the terminal building by Iraqi troops and later moved
to Baghdad and other parts of Iraq. The applicants were held hostage
by the Iraqis in strategic positions throughout Iraq until their
release which, for some of the applicants, was not until December 1990.
The applicants started proceedings in the Scottish courts for
damages from British Airways, alleging that the airline had been
negligent and/or in breach of contract in not taking reasonable care
of its passengers and landing an aircraft in a place which they knew
or ought to have known was a war zone. The applicants sought damages
for loss, injury and damage suffered by them during their period of
detention. The court at first instance, the Outer House of the Court
of Session, dismissed their claims on 20 December 1993.
The court found that the relevant remedies for an international
air passenger are contained in the Warsaw Convention of 1929 as amended
by the Hague Protocol of 1955 (the "Warsaw Convention"). The case-law
surrounding the Warsaw Convention and the court's interpretation of it,
led the court to conclude that the Warsaw Convention is intended to
provide exclusive remedies for those areas of aviation law which it
governs.
The court examined the different heads of liability under the
Warsaw Convention to determine whether the applicants could
successfully mount a claim under the Warsaw Convention. Article 17
deals with personal injury and requires that the injury must have been
bodily injury (which is not alleged by the applicants) and must have
occurred on board the aircraft or whilst embarking or disembarking.
The court found that the psychological damage suffered by the
applicants was a result of their detention in Iraq for a period of
months by Iraqi soldiers and not a result of anything which British
Airways did or did not do on the aircraft or whilst the applicants were
embarking or disembarking.
The court further considered Article 19 of the Warsaw Convention
which deals with liability for delay. Since the aircraft never reached
its final destination, the court found that there had been nothing
which could properly be termed delay.
In these circumstances, the court found that the text of the
Warsaw Convention provided an all-embracing system of liability which
was intended to be exclusive. It held that the applicants' claims did
not fall under any of the heads of liability of the Warsaw Convention
and that there were therefore no remedies available to the applicants
under the Warsaw Convention. Further, because of the exclusive nature
of the Warsaw Convention, it was not open to the applicants to
institute a common law action for breach of contract or negligence.
On appeal on 28 April 1995, the Inner House of the Court of
Session upheld the decision of the court of first instance and on
12 December 1996, the House of Lords upheld the earlier decisions and
dismissed the claims. The House of Lords found that as the applicants
did not have a remedy under the Warsaw Convention against the airline,
they had no remedy at all.
B. Relevant domestic law
Schedule 1 of the Carriage by Air Act 1961 incorporates the
Warsaw Convention into the primary legislation of the United Kingdom.
The Warsaw Convention is described in Schedule 1 as being "for the
Unification of Certain Rules relating to International Carriage by
Air".
Chapter I, Article 1(I) of the Warsaw Convention states:
"This Convention applies to all international carriage of
persons, baggage or cargo performed by aircraft for
reward."
Article 17:
"The carrier is liable for damage sustained in the event of
the death or wounding of a passenger or any other bodily
injury suffered by a passenger, if the accident which
caused the damage so sustained took place on board the
aircraft or in the course of any of the operations of
embarking or disembarking."
Article 19:
"The carrier is liable for damage occasioned by delay in
the carriage by air of passengers, baggage or cargo."
Article 24:
"(1) In the cases covered by Articles 18 and 19 any action
for damages, however founded, can only be brought
subject to the conditions and limits set out in this
Convention.
(2) In the cases covered by Article 17 the provisions of
the preceding paragraph also apply, without prejudice
to the questions as to who are the persons who have
the right to bring suit and what are their respective
rights."
COMPLAINTS
The applicants allege violations of Articles 1, 3, 5, 8 and 13
of the Convention. The applicants seek damages for their period of
detention and for the way that detention affected their health. They
complain that they should be on the same footing as if a remedy had
been available to them against British Airways in the domestic courts.
THE LAW
1. The Commission notes that the applications are similar as regards
the subject matter, the complaints and the representatives, and finds
it appropriate to join them.
2. The applicants allege violations of Articles 3, 5 and 8
(Art. 3, 5, 8) of the Convention.
They claim that their detention amounted to inhuman and degrading
treatment and was a result of the actions of British Airways. Further,
they complain that their loss of liberty and their separation from
their families were also a result of the actions of British Airways.
Article 3 (Art. 3) of the Convention provides as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
Article 5 (Art. 5) of the Convention provides, so far as
relevant, as follows:
"Everyone has the right to liberty and security of person."
Article 8 (Art. 8) of the Convention provides, so far as
relevant, as follows:
"1. Everyone has the right to respect for his private and family
life...
2. There shall be no interference by a public authority with
the exercise of this right..."
The Commission recalls that complaints may only be brought
against the State concerning actions of the State itself or matters for
which the State may be held responsible under the Convention. An
individual cannot complain of the actions of a private person or body
(W. v. Switzerland, No. 9022/80, Dec. 13.7.83, D.R. 33, p. 21). In the
present case, the applicants' complaints are not directed against the
United Kingdom Government but rather against the Iraqi Government or
army, or possibly at British Airways, a public limited company, which
is independent of the United Kingdom Government. The United Kingdom
Government were not responsible for the alleged inhuman or degrading
treatment of the applicants, nor were they responsible for the
deprivation of their liberty and security of person, nor for the
interference with their right to respect for private and family life.
The applicants have not argued that there is evidence to suggest that
the actions of British Airways can be imputed to the United Kingdom
Government.
It follows that this part of the application is incompatible
ratione personae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicants complain of a violation of Article 13 (Art. 13)
of the Convention.
Article 13 (Art. 13) of the Convention provides, so far as
relevant, as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority..."
The Commission recalls that the guarantees of Article 13
(Art. 13) apply only to a grievance which can be regarded as "arguable"
(cf. Eur. Court HR, Powell and Rayner v. the United Kingdom judgment
of 21 February 1990, Series A no. 172, p. 14, para. 31). In the
present case, the Commission has rejected the substantive claims as
incompatible with the provisions of the Convention. For similar
reasons, they cannot be regarded as "arguable".
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicants complain of a violation of Article 1 (Art. 1) of
the Convention.
Article 1 (Art. 1) of the Convention provides as follows:
"The High Contracting Parties shall secure to everyone within
their jurisdiction the rights and freedoms defined in Section 1
of this Convention."
In so far as the applicants allege a breach of Article 1
(Art. 1), no issue arises under this Article as there is no indication
of a violation of any of the other Articles in the Convention (X. v.
the United Kingdom, No. 6084/73, Dec. 1.10.75, D.R. 3, p. 62).
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECIDES TO JOIN APPLICATION NOS. 38698/97 AND 38699/97, AND
DECLARES THEM INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy