Published on 13 September 2021

SECOND SECTION

Application no. 76581/16 BRITISH AIRWAYS PLC against Serbia lodged on 1 December 2016 communicated on 27 August 2021

SUBJECT MATTER OF THE CASE

The applicant company, British Airways, complains about a number of issues regarding and related to its civil compensation lawsuit which was brought in connection with an earlier incident involving a mid-air collision of two commercial aircraft, one of which was owned and operated by the applicant company.

The incident itself happened in 1976 and resulted in the deaths of passengers and crew members, as well as the total destruction of the two aircraft. The civil and constitutional proceedings, however, continued for many years thereafter and the latter only ended in 2016.

Relying on Article 6 § 1 and Article 14 of the Convention, as well as on Article 1 of Protocol No. 1 and Article 1 of Protocol No. 12, the applicant company essentially complains: (a) that the decision of the Supreme Court of Cassation, to declare its appeal on points of law ( revizija ) inadmissible ratione valoris and to otherwise rule partly in favour of the respondent State, was arbitrary and inadequately reasoned, as was the subsequent decision rendered by the Constitutional Court; (b) that the said decision of the Supreme Court of Cassation was also inconsistent with other relevant domestic case-law; (c) that all this amounted to a denial of justice and a breach of its property rights; and (d) that it was discriminated against on the basis of its registered residence outside of Serbia compared to other legal entities based in the respondent State.

QUESTIONS TO THE PARTIES

1. Has there been a violation of Article 6 § 1 of the Convention? In particular, having regard to the reasons given by the Supreme Court of Cassation and the Constitutional Court in their decisions of 8 November 2012 and 3 June 2016 respectively, did the applicant company have a fair hearing in the determination of its civil rights and obligations (see, mutatis mutandis , Anđelković v. Serbia , no. 1401/08, §§ 24 and 27 in fine , 9 April 2013)?

Also, in the light of the applicant company’s allegation that the Supreme Court of Cassation applied flagrantly different case-law to identical situations, did it have a fair hearing in the determination of its civil rights and obligations, in accordance with Article 6 § 1 of the Convention? Specifically, was the principle of legal certainty contained in this provision complied with by the domestic judiciary (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 116, 29 November 2016; see also, mutadis mutandis , Stoilkovska v. the former Yugoslav Republic of Macedonia , no. 29784/07, § 47, 18 July 2013)?

2. Are the applicant company’s complaints under Article 1 of Protocol No. 1 compatible with the provisions of the Convention and the said Protocol, ratione temporis , in so far as they relate to facts which occurred prior to 3 March 2004 as the date of entry into force of both instruments in respect of Serbia (see, mutatis mutandis , Kopecký v. Slovakia [GC], no. 44912/98, § 38, ECHR 2004 ‑ IX)? Also, is Article 1 of Protocol No. 1 applicable in the present case? In particular, did the applicant company have a “legitimate expectation” of obtaining effective enjoyment of the property right in question, i.e. that it would be awarded “full” compensation plus costs and interest by the national judiciary (see, for example and mutatis mutandis , SierpiÅ„ski v. Poland , no. 38016/07, § 65-67, 3 November 2009)?

Should Article 1 of Protocol No. 1 be deemed applicable and compatible ratione temporis , has there been a violation of this provision in so far as the applicant company maintains that it was not awarded such compensation plus costs and interest (see, mutatis mutandis , Mladost Turist A.D. v. Croatia (dec.), no. 73035/14, §§ 34 and 49-58, 30 January 2018)? Also, has there been a violation of Article 1 of Protocol No. 1 in the context of the applicant company’s assertion that the decision of the Supreme Court of Cassation of 8 November 2012 was inconsistent with other relevant domestic case-law? In particular, can the said decision be considered as a “lawful”, i.e. foreseeable, interference with the applicant company’s right to the peaceful enjoyment of its possessions (see, for example, Brezovec v. Croatia , no. 13488/07, § 67, 29 March 2011)?

3. Has the applicant company suffered discrimination: (a) in the enjoyment of its right to a fair trial and/or the right to the peaceful enjoyment of its possessions, contrary to Article 14 of the Convention read in conjunction with Article 6 § 1 thereof and/or Article 1 of Protocol No. 1, or (b) in the enjoyment of a “right set forth by law” in breach of Article 1 of Protocol No.12? In particular, was the applicant company discriminated against on the basis of its registered residence outside of Serbia compared to other legal entities based in the respondent State (see, mutatis mutandis , Carson and Others v. the United Kingdom [GC], no. 42184/05, §§ 66 and 70, ECHR 2010)?