Action brought on 29 December 2020 — KS and KD v Council and Others

(Case T-771/20)

(2021/C 62/54)

Language of the case: English

Parties

Applicants: KS and KD (represented by: F. Randolph, QC and J. Stojsavljevic-Savic, Solicitor)

Defendants: Council of the European Union, European Commission, European External Action Service

Form of order sought

The applicants claim that the Court should order that:

— the defendants, jointly or severally, provide reparation and compensation (including the payment of interest at a rate and for such a period as the Court deems appropriate) to the applicants for the damage suffered by virtue of the former’s responsibility for breaches of the latter’s fundamental human rights, in casu Articles 2, 3, 6, 8 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1) and 2, 4 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) insofar as concerns the first applicant and Articles 2,3 6, and 13 ECHR and 2, 4 and 47 of the CFR insofar as concerns the second applicant, pursuant to Article 340(2) TFEU; and

— the defendants pay the applicants’ costs pursuant to Article 134 of the Rules of Procedure of the General Court, which costs for the avoidance of doubt should not be limited to the amounts of legal aid ordered to be paid by the Court by Order dated 20 November 2020 and should include the costs of conducting proceedings before the Human Rights Review Panel (HRRP).

Pleas in law and main arguments

The applicants seek reparation and compensation, in accordance with the second paragraph of Article 340 TFEU, for the damage they claim to have suffered as a result of the alleged violation of their fundamental human rights, in particular under Articles 2 (procedural limb), 3, 6(1) and 13 ECHR and the corresponding Articles 2, 4 and 47 of the Charter by the Defendants.

The action relates to facts arising after 8 December 2008 when responsibility with regard to police and justice was transferred from the United Nations Interim Administration in Kosovo (UNMIK) to the European Union, with EULEX assuming full operational control in the area of the Rule of Law, following adoption of EU Council Joint Action 2008/124/CFSP (2) on 8 February 2008. The latter conferred an executive mandate upon EULEX to ensure that war crimes, inter-ethnic crimes and other serious crimes were ‘properly investigated, prosecuted, adjudicated and enforced’.

The applicants invoke:

— a continuing violation of Articles 2 and 3 ECHR (procedural limbs) by the defendants for failure to take remedial action upon receiving notification, at the latest on 29 April 2016, that the HRRP had found EULEX to be in violation of Articles 2 and 3 ECHR in the performance of its executive mandate;

— a continuing violation of Articles 6 and 13 ECHR and 47 of the Charter by the Council’s decision to establish the HRRP without powers to provide legal aid to qualifying persons and without powers to enforce its decisions and provide a remedy for the violations found;

— a misuse or abuse of executive power by the Council and the EEAS on 12 October 2017 by asserting that EULEX had done the best it could to investigate the abduction and probable murder of the first applicant’s husband and the murder of the second applicant’s husband and son and that the Panel was not intended to be a judicial body;

— a misuse or failure to use executive power properly insofar as Council Decision (CFSP) 2018/856 (3) removed the executive mandate of EULEX on 8 June 2018, whilst the violations remained extant.

(1) European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’).

(2) Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO (OJ 2008 L 42, p. 92).

(3) Council Decision (CFSP) 2018/856 of 8 June 2018 amending Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo (OJ 2018 L 146, p. 5).