CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 37650/97                       by Barry MANNERS and 4 Others                       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 23 June 1997 by Barry MANNERS and 4 Others against the United Kingdom and registered on 4 September 1997 under file No. 37650/97;         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 all British citizens and are resident in the United Kingdom except for the first applicant, who resides in France and England.   A list of the applicants is annexed to the present decision.   They are represented before the Commission by Pannone & Partners, solicitors, Manchester.   The facts of the application, as submitted by the applicants' representative, may be summarised as follows.   A.     The 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 because of technical and weather problems.   The aircraft did not land in Kuwait therefore until 01.13 by which time Iraq had invaded Kuwait.   The airport was closed after the aircraft landed and the passengers were detained in the terminal building by Iraqi troops.   The passengers were held hostage and used by the Iraqis as "human shields" in strategic positions throughout Iraq until their eventual release which for some of the applicants was not until December 1990.         The applicants commenced High Court proceedings against British Airways in England in July 1992 claiming compensation for psychological trauma, physical injury and/or financial loss.   The applicants brought their claims under the Warsaw Convention of 1929 as amended by the Hague Protocol of 1955 (the "Warsaw Convention").   They also alleged that they had a claim in negligence against the airline because they claimed that British Airways knew or ought to have known that the invasion of Kuwait was imminent when the aircraft left London and that consequently the aircraft should have been diverted.         The claims of the applicants were consolidated in November 1992 and a statement of claim was served on British Airways in December 1992.   British Airways' defence was received in January 1993.         Meanwhile similar claims had been brought in Scotland and England by other passengers on flight BA 149, also seeking compensation from British Airways.   These other claims went to the House of Lords together in 1996 and were unanimously dismissed (see Sidhu and others v. British Airways plc, Abnett (known as Sykes) v. British Airways plc [1997] 1 All ER 193 (also see Application No. 38698/97, Dec. 21.5.98)). The House of Lords upheld the decisions of the Scottish courts that the appellants did not have a right to sue British Airways under the Warsaw Convention which governs claims by international air passengers against carriers where the damage or injury suffered can be established as resulting from the actions of the carrier.   The court found that the psychological damage alleged was a result of the passengers' detention in Iraq and not a result of anything which British Airways did.   It further found that the Warsaw Convention provides an exclusive system of liability and if a passenger fails to establish a claim under the Warsaw Convention, he or she is precluded from seeking another remedy under the common law actions of negligence or breach of contract.         The applicants in the present case are thus unable to take their own High Court proceedings any further in the United Kingdom because the House of Lords has already given a judgment on the points in contention in favour of British Airways.   Their own claim in the High Court is likely to fail in that their circumstances are almost identical to those of Abnett and Sidhu.   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, 2, 3, 5, 6, 8, 13 and 14 of the Convention, together with Article 1 of Protocol No. 1. They complain that the United Kingdom Government have failed to recognise that their rights under the Convention have been violated, failed to allow compensation for the alleged violations and failed to provide an effective remedy to ensure that the applicants are able to obtain such compensation.   THE LAW   1.     The applicants allege violations of Articles 2, 3, 5 and 8 (Art. 2, 3, 5, 8) of the Convention, together with Article 1 of Protocol No. 1 (P1-1).   They complain that they feared for their lives during their detention and that the circumstances of their detention amounted to inhuman and degrading treatment although they were not physically tortured.   Further, they complain that they were deprived of their liberty and are denied compensation.   They complain that their family life was disrupted and that they were deprived of their possessions for four months.         Article 2 (Art. 2) of the Convention provides, so far as relevant, as follows:         "Everyone's right to life shall be protected by law."         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..."         Article 1 of Protocol No. 1 (P1-1) provides, so far as relevant, as follows:         "Every natural or legal person is entitled to the peaceful       enjoyment of his possessions."         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.   2.     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 either as incompatible with provisions of the Convention or as disclosing no appearance of a violation 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.   3.     The applicants complain under Article 6 (Art. 6) that they have not had a fair hearing.   They complain in particular that it cannot be fair for passengers in some member states (notably France) to be compensated and other passengers in other member states to be denied compensation.   They complain that they are prevented from pursuing their claims for compensation because of a limitation of liability conferred on British Airways by virtue of the Warsaw Convention, but such limitation has not prevented passengers in France from making successful claims.         Article 6 (Art. 6) of the Convention provides, so far as relevant, as follows:         "In the determination of his civil rights and       obligations...everyone is entitled to a fair and public       hearing..."         The Commission recalls that Article 6 para. 1 (Art. 6-1) of the Convention applies only to disputes ("contestations") over rights and obligations which can be said, at least on arguable grounds, to be recognised under domestic law.   It does not in itself guarantee any particular content for "rights and obligations" in the substantive law of Contracting States (cf. Eur. Court HR, James and others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 46, para. 81; Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, p. 70, para. 192).   It is also established case-law that Article 6 para. 1 (Art. 6-1) guarantees to everyone who claims that an interference with his "civil rights" is unlawful, the right to submit that claim to a tribunal satisfying the requirements of that provision (Eur. Court HR, Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, p. 20, para. 44).         Further, the Commission recalls that the Convention organs have developed case-law in which the question of exclusion from the substance of civil rights has been considered in the context of access to court (see, for example, the discussion on the judicial limitations on the substantive law of negligence in the United Kingdom in Osman v. the United Kingdom, No. 23452/94, Comm. Report 1.7.97, and the case- law referred to there).         In the present case, the Commission notes that the exclusion of the applicants from the scope of the substantive law could be considered as having been clear from the outset: the Carriage by Air Act 1961 incorporates the Warsaw Convention and limits a carrier's liability to damage "on board the aircraft or in the course of any of the operations of embarking or disembarking".   Thus, following the European Court of Human Rights in its judgment in the case of Powell and Rayner (Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172), it may be possible to conclude in the present case that Article 6 (Art. 6) was not applicable.         However, in the relatively recent judgment of the European Court of Human Rights in the case of Fayed (Eur. Court HR, Fayed v. the United Kingdom judgment of 21 September 1994, Series A no. 294-B), the Court found it unnecessary to determine whether an immunity or privilege delimited the content of substantive law or acted as a limitation on the right to bring proceedings.   The Court therefore ascertained whether the contested limitation on the applicants' ability to take legal proceedings satisfied the conditions set out in the court's case-law (above-mentioned Fayed v. the United Kingdom judgement, p. 51, para. 68).   According to that case-law, limitations on the right of access to court are permitted provided that they pursue a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (p. 49, para. 65, and the case-law referred to there).         The Commission will therefore address the issues of the aim of the limitation on access to court in the present case and the proportionality between the means employed and that aim.         The limitation on the applicants' access to court was brought about by the incorporation into United Kingdom law of the Warsaw Convention as amended at The Hague, 1955.   That Convention created a unified, international system of rules governing inter alia the rights, duties and liabilities of carriers and their passengers.   It has been ratified by over 100 states.   The Commission considers that the legitimacy of the aim of rationalising international air traffic by setting up a single system of liability for carriers and their passengers is self-evident: aircraft move frequently and rapidly from the air space above one country to the air space above another country, and clarification of the rules on liability is to be welcomed in the interest of orderly litigation.         As to the proportionality of the means employed with that aim, the Commission notes that the Warsaw Convention as applied in the United Kingdom does not merely exclude liability.   Rather, it provides for a comprehensive system of liabilities and duties whereby the carrier is liable for damage sustained if a passenger is killed or injured on board the aircraft or in the course of embarking or disembarking (Article 17, subject to Article 20, which absolves the carrier if all necessary measures to avoid the damage were taken), but not otherwise.   Liability is limited to 16,600 special drawing rights per passenger (Article 22).   A further feature of the Convention is that exclusion clauses, which might attempt to set a lower limit of liability or exclude liability altogether, are null and void (Article 23).         The Warsaw Convention as applied in the United Kingdom thus indeed limits access to court in the sense that actions for negligence do not lie against airlines in respect of relevant flights, and that airlines are not responsible for damage not occurring "on board ... or in the course of embarking or disembarking".   However, against the limitation must be set the features of a generally simplified finding of liability and the nullity of exclusion clauses.   Overall, the Commission cannot find that the specific limitations on access are disproportionate to the legitimate aim pursued.         Finally, the Commission notes that the plaintiffs in the cases of Abnett and Sidhu were able to, and did, put their claims to the civil courts.   Those claims were dealt with at considerable length by the domestic courts, including the House of Lords.   The applicants make no complaint whatever about, for example, the fairness of the proceedings which would have been available to them, and it is apparent from the judgments in the Abnett and Sidhu cases that the plaintiffs there were given extensive opportunity to put their cases to the courts.   The fact that the courts found that the claims fell outside the scope of the substantive law is not relevant in the context of Article 6 (Art. 6), which guarantees procedural rights in the determination of civil rights (or whether a case falls outside the scope of a civil right), and not the civil rights themselves.         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 also complain under Article 14 (Art. 14) that they have been discriminated against as some of the other passengers on flight BA 149 have been successful in obtaining compensation from British Airways in the French courts whereas if the applicants were to proceed with their claim in the English courts, it would be bound to fail.         Article 14 (Art. 14) of the Convention provides, so far as relevant, as follows:         "The enjoyment of the rights and freedoms set forth in this       Convention shall be secured without discrimination on any ground."         The Commission recalls that Article 14 (Art. 14) affords protection against discrimination, that is treating differently, without an objective and reasonable justification, persons in "relevantly" similar situations.   For a claim of violation of this Article to succeed, it has therefore to be established, inter alia, that the situation of the alleged victim can be considered similar to that of persons who have been better treated (see Eur. Court HR, Fredin v. Sweden judgment of 18 February 1991, Series A no. 192, p. 19, para. 60).   The applicants must show that they are persons in the same category as another, that they have been treated differently, that such treatment was not objectively and reasonably justified, and the treatment was carried out by the Contracting State against which the complaint is being made.   There is no evidence in the present case that the applicants have been discriminated against.   The fact that the French courts' interpretation of the Warsaw Convention may differ from that of the English courts does not mean that the applicants have been discriminated against by the United Kingdom Government.         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.   5.     The applicants allege 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), the Commission concludes that no issue arises under this Article as it considers that there is no indication of a violation of any of the other Articles in the Convention (see 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,         DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                              M.P. PELLONPÄÄ      Secretary                                     President to the First Chamber                         of the First Chamber