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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

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SYKES AND 9 OTHERS, SALOOM AND 3 OTHERS v. THE UNITED KINGDOM

SYKES AND 9 OTHERS, SALOOM AND 3 OTHERS v. THE UNITED KINGDOM