BRITISH AIRWAYS PLC v. Serbia
The European Court of Human Rights (hereinafter: the Court) is on September 3, 2024. year, and on September 26 of the same year announced the decision in the case British Airways PLCagainst Serbia, number76581/16.
It's a decisionbroughtthree-member Board.
The case refers to the payment of compensation for damages caused by a plane crash in 1976. The applicant company complained that it was not able to obtain full compensation for damages before the Serbian courts, due to discrimination and unfair court proceedings, which violated its right to property. |
THE CIRCUMSTANCES CASES
On September 10, 1976, there was a collision between the plane of the applicant's company and the company's planeAdria Airways, as a result of which all passengers and crew members of both planes (176 of them) lost their lives. It was later determined that the collision occurred as a result of an air traffic control error at the airport in Zagreb (Republic of Croatia), then part of the Socialist Federal Republic of Yugoslavia (hereinafter: SFRY).
On September 9, 1979, the applicant company submitted a request for compensation to the then District Commercial Court in Belgrade. At the same time, the claim for compensation was submitted by the insurance company "Dunav osiguranje" on behalf of the companyAdria Airways.
The procedure was interrupted several times (from October 20, 1995 to June 2, 2004, from July 4 to November 30, 2006 and from October 15, 2007 to July 16, 2009) until the takeover issue was resolved. rights and obligations of the former SFRY and the State Union of Serbia and Montenegro.
On October 18, 2000, the Commercial Court in Belgrade awarded damages in the proceedings conducted by the insurance company "Dunav osiguranje". The decision was confirmed on December 17, 2001, before the Commercial Court of Appeal, and on July 2, 2003, before the Supreme Court of Serbia. The debt was in the name of the Federal Republic of Yugoslavia, as the sole legal successor of SFRY.
Also, on June 16, 2011, the Commercial Court in Belgrade awarded damages to the applicant company, which it judged should be paid by the Republic of Serbia as the legal successor of SFRY, with default interest from September 9, 1979. (date of initiation of the procedure for compensation of damages). In October 2011, the Commercial Appellate Court changed the first-instance verdict only in the part that referred to the date from which the statutory default interest is calculated, specifying that it should be the date of the first-instance verdict. Both sides in the dispute requested a review of the verdict.
On November 8, 2012, the Supreme Court of Cassation issued a verdict rejecting the audit of the applicant company as impermissible, while partially accepting the audit of the defendant Republic of Serbia and reducing the amounts awarded in the name of compensation for material damage. The Supreme Court of Cassation expressed the view that the Republic of Serbia can only be charged for 35.77% of the total debt, in accordance with the Agreement on Succession Matters that entered into force on June 2, 2004.
The applicant company then submitted a constitutional appeal to the Constitutional Court.
On May 12, 2016, the Constitutional Court passedthe decision by which he determined that the applicant company's right to a trial within a reasonable time was violated in the civil proceedings conducted before the Commercial Court in Belgrade, while in the remaining part he rejected and rejected the constitutional appeal. From the explanation of the decision of the Constitutional Court, it can be determined that all the complaints of the applicant company were considered in detail.
COMPLAINTS OF THE APPLICANT AND THE PROCEDURE BEFORE THE COURT
The applicant company submitted a petition to the Court on December 1, 2016.
In the application, the applicant company complained about the violation of the right to a fair trial from Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention), the prohibition of discrimination from Article 14 of the Convention, the protection of property from Article 1 of Protocol No. 1 with Convention and general prohibitions of discrimination from Article 1 of Protocol No. 12 to the Convention.
The case was communicated to the Republic of Serbia as a case of influence (impact case).
THE DECISION THE COURT
Examining the alleged violation of rights from Article 1 of Protocol No. 1 to the Convention (protection of property), the Court found that the complaint of the applicant's company refers to the failure of the Republic of Serbia to pay compensation for damages, which is an obligation established in 2016 when the case was concluded from by the Serbian courts. Accordingly, the Court established its jurisdictionratione temporis, despite the fact that the plane crash took place before the Republic of Serbia ratified the Convention.
The government pointed out that the applicant company could not have legitimate expectations that its request for compensation would be fully accepted, because the state responsible for the damage suffered (FRY) ceased to exist, and the Republic of Serbia was only one of the successor states.
The court took the position that the applicant company's expectation that the damage would be fully paid by the Republic of Serbia was not justified. The court is of the opinion that the applicant company must have known that the Serbian courts can decide on the case only to the extent that the Republic of Serbia is responsible for the subject of the dispute.
Also, the Court pointed out that the applicant company did not refer to any provision of Serbian or international law that would justify the expectation of full settlement of the compensation for damages that was first demanded from SFRY, nor did it show that the Republic of Serbia accepted full responsibility for the offense that can be attributed SFRY. The court also referred to the relevant provisions of the Agreement on matters of succession, indicating the division of shares in SFRY debts among the successor states.
Finally, the Court found that the fact that compensation for damage to the insurance company "Dunav osiguranje" was awarded in its entirety is not relevant to the case, since it preceded the Agreement on Succession Issues and the Accession of the Republic of Serbia to the Convention in 2004.
Based on everything, the court concluded that the applicant company could not have a "legitimate expectation that it will compensate the damage in its entirety from the Republic of Serbia, and that the complaint of the applicant company in the part of the amount of compensation allegedly due to it cannot be considered as property in the sense of Article 1 of the Protocol number 1 with the Convention. Therefore, the Court concluded that the complaint of the applicant companyratione materiae incompatible with the provisions of the Convention and the Protocols attached to it, and rejected it in accordance with the provisions of Article 35, paragraph 3 (a) and 4 of the Convention.
The court rejected the other complaints of the applicant company in accordance with the provisions of Article 35, paragraph 4 of the Convention.