Counsel highlights ‘delicious irony’ of Brexit’s effects on human rights law

Mon, 18 Feb 2019

Human rights expert Becket Bedford says a ground-breaking case that attempts to hold the European Union liable in an English court for the Union's violation of fundamental human rights a "delicious irony of law”.

As first counsel for the claimants in Tomanovic v European Union [2019] EWHC 263 (QB) Mr Bedford of No5 Barristers’ Chambers presented the case to hold the European Union liable in an English court for the Union's violation of fundamental human rights in connection with ethnic killings in Kosovo after two decades.

His case was refused by Mr Justice Murray, who cited uncertainty surrounding Brexit as a factor in his ruling.

Mr Bedford described it as a ground-breaking case that had previously only been presented hypothetically and which had resulted in a "delicious irony of law” when argued in court.

Mr Bedford said: "This is the first time anyone has attempted to bring such a case. It has been argued and presented by academics but has never been brought to the English Courts before. I led Professor Panos Koutrakos of Monckton Chambers in the case and it was rejected with some reluctance.

"Brexit was cited, whether there is hard Brexit or a withdrawal agreement there remains the uncertainty over jurisdiction.

"For the families of these people the fight for knowledge and understanding of what happened to their families has been ongoing for more than 20 years now and I feel that as this case was started before Brexit it should be allowed to continue.

"The next stage is to take this to the Court of Appeal. The European Court of Justice is unable to hold the Union to account and we are seeking to make the Union accountable in the English courts.

"Individual governments are liable for human rights breaches and the families have a right to know if the Union breached human rights by failing to prosecute for breaches.”

Mr Bedford and Prof Koutrakos sought a declaration that the defendants are in violation of the claimants' human rights under Articles 2, 4 and 47 of the Charter of Fundamental Rights of the European Union ("the Charter") and Articles 2, 3 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR") to the extent that those Articles apply as general principles of the law of the European Union ("EU") under Article 6(3) of the Treaty on European Union ("the TEU") for their failure to investigate and prosecute properly, or at all, war crimes, inter-ethnic crimes or other serious crimes committed against their family members.

In rejecting the case Mr Justice Murray said the European Court of Justice should have jurisdiction over claims of breaches of human rights. He also stated: "Moreover, on the question of whether to make a reference to the Court of Justice and on the question of whether it would be appropriate or even possible to exercise jurisdiction following a preliminary ruling permitting that exercise, I am entitled to weigh in the balance that there is a strong possibility that the UK will no longer be a Member State of the EU by the time the request for a preliminary ruling is resolved by the Court of Justice.

Becket Bedford is a member of the following groups at No5 Barristers’ Chambers: Banking, Finance and Financial Regulation, Commercial Litigation, Immigration, Asylum and Nationality, Insolvency, Insurance, International Arbitration and Trade, International Human Rights Law, Property and Public Law

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