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. 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