Type: Judgment

Authority: European Authorities: European Court of human rights

Date: 05/31/2007

Subject: The Court has unanimously, struck out the Saramati application concerning Germany; and, by a majority, declared inadmissible the remainder of the Saramati application and the case Behrami and Behrami v. France. Summary of the Facts Behrami and Behrami The applicants are Agim Behrami, born in 1962, and his son, Bekir Behrami, born in 1990. Both live in the municipality of Mitrovica, Kosovo, in the then Federal Republic of Yugoslavia (FRY) (now the Republic of Serbia). Agim Behrami also applied on behalf of another of his sons, Gadaf Behrami, born in 1988, who is now deceased. At the relevant time (March 2000) Mitrovica was within the sector of Kosovo for which a multinational brigade led by France was responsible; it was one of four brigades making up the international security force (KFOR) presence in Kosovo, mandated by UN Security Council (UNSC) Resolution 1244 of June 19991. On 11 March 2000 Gadaf and Bekim Behrami were playing with some other boys in the hills in the Sipolje area of Mitrovica. They found a number of undetonated cluster bombs, which had been dropped during the bombardment of FRY by NATO in 1999, and began playing with them. One of the children threw a bomb into the air; it detonated and killed Gadaf Behrami. Bekim Behrami was also seriously injured and later had numerous eye operations. The UN Interim Administration for Kosovo (UNMIK) - mandated by the same Resolution 1244 – investigated the incident and reported, on 18 March 2000, that Gadaf Behrami had died from numerous injuries following a cluster bomb explosion and that the incident amounted to “an unintentional homicide committed by imprudence”. On 22 May 2000 Agim Behrami was informed that no criminal prosecution was to be brought because the bomb did not explode during the NATO bombardment. He was also informed that he had the right to pursue a criminal prosecution within eight days. On 25 October 2001 Agim Behrami complained to the Kosovo Claims Office that France had not respected the provisions (concerning de-mining) of Resolution 1244. The claim was ultimately rejected on the ground that mine clearance had been the responsibility of the UN since 5 July 1999. Saramati The applicant is Ruzhdi Saramati who was born in 1950. He is from Kosovo and of Albanian origin. In April 2001 the applicant was arrested by UNMIK police and later detained. On 23 May 2001 a prosecutor filed an indictment accusing the applicant of attempted murder, causing serious bodily harm, unlawful possession of weapons or exploding substances, causing minor bodily injury and violent behaviour. He appealed successfully against a further detention order and was released. On 13 July 2001 he was arrested by two UNMIK police officers. The applicant initially submitted that it was a German KFOR officer who orally issued the arrest order and informed him that he was being arrested by order of the KFOR Commander (COMKFOR), a Norwegian officer at that time. He was taken to a KFOR camp under escort by American KFOR soldiers. On 14 July 2001 the COMKFOR authorised the applicant’s further detention for 30 days. On 26 July 2001, and in response to a letter from the applicant’s representatives taking issue with the legality of his detention, the KFOR Legal Adviser advised that KFOR had the authority to detain under Resolution 1244 as it was necessary “to maintain a safe and secure environment” and to protect KFOR troops. KFOR had information concerning the applicant’s involvement with armed groups operating in the border region between Kosovo and the Former Yugoslav Republic of Macedonia and was satisfied that the applicant represented a threat to the security of KFOR and to those residing in Kosovo. On 11 August 2001 the applicant’s detention was again extended. On 6 September 2001 the applicant’s case was transferred to the district court for trial. During each trial hearing from 17 September 2001 to 23 January 2002 the applicant’s representatives requested his release and the trial court responded that his detention was the responsibility of KFOR. On 3 October 2001 a French General became the COMKFOR. On 23 January 2002 the applicant was convicted of attempted murder under Article 30 § 2(6) of the Criminal Code of Kosovo in conjunction with Article 19 of the Criminal Code of the FRY. On 26 January 2002 he was transferred by KFOR to the UNMIK detention facilities in Pristina. On 9 October 2002 the Supreme Court of Kosovo quashed the applicant’s conviction and his case was sent for re-trial to Pristina District Court. His release from detention was ordered. A re-trial has yet to be fixed. Complaints Behrami and Behrami The applicants alleged that Gadaf Behrami’s death and Bekir Behram’s injuries were caused by the failure of the French KFOR troops to mark and/or defuse the un-detonated cluster bombs which KFOR had known to be present on the site in question. They relied on Article 2 (right to life) of the European Convention on Human Rights Saramati The applicant complained under Article 5 (right to liberty and security) and Article 13 (right to an effective remedy) of the Convention, about his detention by KFOR between 13 July 2001 and 26 January 2002. He further complained under Article 6 § 1 (right to a fair trial) that he did not have access to court and, under Article 1 (obligation to respect human rights), that France, Germany and Norway had failed to guarantee the Convention rights of individuals living in Kosovo. Procedure The application in the case of Behrami and Behrami v. France was lodged with the European Court of Human Rights on 28 September 2000 and the application in the case of Saramati v. France, Germany and Norway, on 28 September 2001. On 13 June 2006 the Chamber of the Court dealing with the cases relinquished jurisdiction in favour of the Grand Chamber, under Article 302 of the Convention. Decision of the Court Withdrawal of Saramati case against Germany Mr Saramati initially claimed that a German KFOR officer had been involved in his arrest and also referred to the fact that Germany was the lead nation in the multinational force in the southeast. The German Government responded that, despite detailed investigations, they had not been able to establish any involvement of a German KFOR officer in Mr Saramati’s arrest. Mr Saramati maintained that he had made his submission in good faith, but that he was unable to produce any objective supporting evidence. He also considered that German KFOR control of the relevant sector was insufficient as a ground to bring him within the jurisdiction of Germany. He therefore asked to withdraw his case against Germany. Finding that respect for human rights did not require a continued examination of Mr Saramati’s case against Germany (Article 37 § 1), the Court decided to strike out the case as far as it concerned Germany. Admissibility The Court observed that the applicants in Behrami and Behrami complained about the impugned inaction of KFOR troops and that Mr Saramati complained about his detention by, and on the orders of, KFOR. The President of the Court agreed that the parties’ submissions to the Grand Chamber could be limited to the admissibility of the cases. The Court considered that the question raised by the cases was, less whether the States concerned exercised extra-territorial jurisdiction in Kosovo but, far more centrally, whether the European Court of Human Rights was competent to examine under the European Convention on Human Rights (the Convention) those States’ contribution to the relevant civil and security presence exercising control of Kosovo. The Court considered that issuing detention orders fell within the security mandate of KFOR and that the supervision of de-mining fell within the mandate of UNMIK. It went on to ascertain whether the impugned action of KFOR (detention of Mr Saramati) and inaction of UNMIK (the alleged failure to de-mine in the Behrami case) could be attributed to the UN. In that respect, the Court first established that Chapter VII of the UN Charter could provide a framework for the delegation of the UNSC’s security powers to KFOR and of its civil administration powers to UNMIK. Since KFOR was exercising lawfully delegated Chapter VII powers of the UNSC and since UNMIK was a subsidiary organ of the UN created under Chapter VII, the impugned action and inaction was, in principle, “attributable” to the UN which had a legal personality separate from that of its member states and was not a Contracting Party to the Convention. The Court then considered whether it was competent to review the acts of the States in question carried out on behalf of the UN and, more generally, as to the relationship between the Convention and the UN acting under Chapter VII of its Charter. The Court first observed that nine of the 12 original signatory parties to the Convention in 1950 had been members of the UN since 1945, that the great majority of the Contracting Parties joined the UN before they signed the Convention and that all Contracting Parties were members of the UN. Indeed, one of the aims of the Convention was the collective enforcement of rights in the Universal Declaration of Human Rights of the General Assembly of the UN. More generally, the Convention had to be interpreted in the light of any relevant rules and principles of international law applicable in relations between its Contracting Parties. The primary objective of the UN was the maintenance of international peace and security. While it was equally clear that ensuring respect for human rights represented an important contribution to achieving international peace, the fact remained that the UNSC had primary responsibility, as well as extensive means under Chapter VII, to fulfil that objective, notably through the use of coercive measures. The responsibility of the UNSC was unique and had evolved as a counterpart to the prohibition, now customary international law, on the unilateral use of force. In the applicants’ cases, Chapter VII allowed the UNSC to adopt coercive measures in reaction to an identified conflict considered to threaten peace, namely UNSC Resolution 1244 establishing UNMIK and KFOR. Since operations established by UNSC Resolutions under Chapter VII of the UN Charter were fundamental to the mission of the UN to secure international peace and security and since they relied for their effectiveness on support from member states, the Convention could not be interpreted in a manner which would subject the acts and omissions of Contracting Parties which were covered by UNSC Resolutions and occurred prior to or in the course of such missions, to the scrutiny of the Court. To do so would be to interfere with the fulfilment of the UN’s key mission in the field including the effective conduct of its operations. It would also be tantamount to imposing conditions on the implementation of a UNSC Resolution which were not provided for in the text of the Resolution itself. That reasoning equally applied to voluntary acts of the States concerned such as the vote of a permanent member of the UNSC in favour of the relevant Chapter VII Resolution and the contribution of troops to the security mission: such acts might not have amounted to obligations flowing from membership of the UN but they remained crucial to the effective fulfilment by the UNSC of its Chapter VII mandate and, consequently, by the UN of its imperative peace and security aim. The Court went on to find the present cases to be clearly distinguishable from its earlier judgment in the Bosphorus case, on which the applicants had relied. It was distinguished in terms of the responsibility of the respondent States under Article 1 and of the Court’s competence ratione personae (the impugned acts and omissions of KFOR and UNMIK could not be attributed to the respondent States and, moreover, did not take place on the territory of those States or by virtue of a decision of their authorities). The Bosphorus case was also distinguishable because there was, in any event, a fundamental distinction between the international organisation/international cooperation at issue in the Bosphorus case and those at issue in the present cases: UNMIK was a subsidiary organ of the UN created under Chapter VII and KFOR was exercising powers lawfully delegated under Chapter VII of the Charter by the UNSC. As such, their actions were directly attributable to the UN, an organisation of universal jurisdiction fulfilling its afore-mentioned imperative collective security objective. In light of that conclusion, the Court considered that it was not necessary to examine the remaining submissions of the parties on the admissibility of the application, including on the competence of the Court to examine complaints against the States concerned about extra-territorial acts or omissions and on whether the applicants had exhausted any effective remedies available to them within the meaning of Article 35 § 1 of the Convention.

Parties: Behrami e Behrami c/ Francia; Saramati c/ Francia, Germania e Norvegia

Classification: Dignity - Art. 2 Right to life - Freedoms - Art. 6 Personal liberty - Personal security - Justice - Art. 47 Right to an effective remedy before a tribunal - General provisions - Art. 51 Scope - Art. 52 Scope of guaranteed rights