Introduction

Tomanovic & Ors v. Foreign and Commonwealth Office is a pivotal case adjudicated by the England and Wales Court of Appeal (Civil Division) on February 4, 2021. The case arises from the tragic events in Kosovo during 1999/2000, where family members of the claimants' loved ones were killed or abducted. The crux of the litigation centers on allegations against the Foreign & Commonwealth Office (FCO) for failing to investigate these crimes, thereby breaching obligations under the Human Rights Act 1998 and the European Convention on Human Rights (ECHR).

The claimants, representing family members of the victims, argue that Mr. Ratel, the Head of the Special Prosecutions Office of the Republic of Kosovo (SPOK), failed to adequately investigate the offenses. They further assert that this failure constitutes a breach of Article 2 (right to life) and Article 3 (prohibition of inhuman or degrading treatment) of the ECHR, and hold the FCO liable as Mr. Ratel's employer for his actions during his secondment to Kosovo.

Summary of the Judgment

The court primarily dealt with an application to reopen a decision under CPR 52.30, which had previously refused the claimants' permission to appeal based on the judgment by Mr. Justice Johnson on December 5, 2019. The initial judgment favored the FCO, dismissing the claimants' assertions on the grounds of jurisdiction and attribution.

The Court of Appeal upheld the earlier decision, reaffirming that the FCO did not exert the necessary authority or control over Mr. Ratel's prosecutorial functions in Kosovo. Consequently, the claims against the FCO were dismissed, and the application to reopen the appeal was denied due to the lack of real injustice and absence of exceptional circumstances warranting such a reopening.

Analysis

Precedents Cited

The judgment extensively references key legal precedents that shape the Court's approach to jurisdictional and attributional issues under the ECHR framework:

• Al-Skeini v. United Kingdom: This case established the "public powers gateway" for extraterritorial jurisdiction under Article 1 of the ECHR, emphasizing state control and authority over individuals.
• Lawal v. Circle 33 Housing Trust: Defined the stringent conditions under CPR 52.30 for reopening appeals, highlighting that significant injustices must overpower the need for finality in litigation.
• Kontić and Others v. Ministry of Defence: Earlier litigation where similar claims against the Ministry of Defence failed, reinforcing the boundaries of UK jurisdiction in international contexts.
• Drozd and Janousek v. France and Spain: Provided insights into jurisdictional limits, particularly concerning international missions and the requirement of consent from the host state.

These cases collectively underscore the judiciary's cautious approach toward extending jurisdiction and attributing state responsibility, especially in international settings.

Legal Reasoning

The court's decision hinged on two main legal pillars: jurisdiction under Article 1 of the ECHR and the attribution of responsibility for Mr. Ratel's actions to the FCO.

**Jurisdiction:** The court determined that the claimants fell outside the UK's jurisdiction, as the events occurred in Kosovo, and there was no evidence of the UK exercising control over the actions in question. The "public powers gateway" requires state authority and control, which were absent in this case.

**Attribution:** The court found that Mr. Ratel's role within the EULEX mission in Kosovo was independent of the FCO's direct control. His directives emanated from the EULEX management, not the FCO, thereby severing the link necessary for state responsibility under the ECHR.

Furthermore, the court meticulously addressed procedural challenges raised by the claimants, reaffirming the necessity of adhering to CPR 52.30's stringent criteria for reopening appeals. The high threshold ensures that only cases of grave injustice, typically involving fraud or bias, warrant such reopening.

Impact

This judgment reinforces the stringent standards required for extraterritorial jurisdiction and state responsibility under the ECHR. By upholding the dismissal of the claimants' case, the court delineates clear limits on the scope of the UK's accountability for actions undertaken by seconded personnel in international missions.

Future cases involving similar claims will reference this judgment to assess the boundaries of jurisdiction and the conditions under which state liability may be established. Additionally, it underscores the judiciary's commitment to the finality of litigation, ensuring that mechanisms to reopen appeals are reserved for exceptional circumstances.

Complex Concepts Simplified

The judgment delves into several intricate legal concepts. Here's a simplified explanation of the most pertinent ones:

Extraterritorial Jurisdiction

**Definition:** The application of a country's laws beyond its national boundaries.

**In Context:** The claimants argued that the UK's obligations under the ECHR extended to actions of its officials in Kosovo. The court examined whether the UK had sufficient control over Mr. Ratel's actions abroad to warrant jurisdiction.

Attribution

**Definition:** Assigning responsibility for actions to an entity, such as the state.

**In Context:** The claimants sought to attribute Mr. Ratel's alleged failures to the FCO, thereby holding the UK state accountable for ECHR breaches. The court scrutinized the nature of Mr. Ratel's employment and command structure to determine proper attribution.

CPR 52.30

**Definition:** A rule under the Civil Procedure Rules governing the reopening of final determinations.

**In Context:** The claimants applied under CPR 52.30 to reopen the dismissed case, arguing that not doing so would result in real injustice. The court assessed whether the application met the high threshold set by this rule.

Public Powers Gateway

**Definition:** A legal threshold determining when a state is exercising powers under the ECHR.

**In Context:** Derived from Al-Skeini v. UK, it requires that the state exercises authority and control over individuals' actions for ECHR obligations to apply extraterritorially.

Conclusion

The Tomanovic & Ors v. FCO judgment serves as a critical reaffirmation of the limitations surrounding extraterritorial jurisdiction and state attribution under the ECHR. By upholding the initial dismissal of the claimants' case, the Court of Appeal underscored the high barriers necessary to hold a state accountable for actions undertaken by its seconded officials abroad.

This decision not only clarifies the extent of the UK's obligations under the Human Rights Act but also reinforces the judiciary's commitment to procedural finality, ensuring that reopening appeals remains an exceptional measure. Legal practitioners and scholars will reference this case in future litigations to navigate the complexities of jurisdictional and attributional challenges in human rights claims.

Ultimately, while the judgment brings closure to this particular litigation, it also highlights the ongoing struggles faced by victims seeking justice for human rights violations occurring in volatile international contexts.