Article and freedoms defined in Section I

Article 1 of the
European Convention on Human Rights (ECHR) recites that “The High Contracting
Parties shall secure to everyone within their jurisdiction the rights
and freedoms defined in Section I of this Convention”. This provision is to be
understood as defining the scope of application of the Treaty which is limited
to individuals and actions that fall under the jurisdiction of each Member
State. The Convention is silent on the actual meaning of the term
“jurisdiction” which is, thus, accepted as the interpretation given under
international law and, also, according to the one of Strasbourg Court case law.1
However, the term derives from the Latin ius,
the law, and dictio, stemming from dicere, to declare. Literally,
jurisdiction would therefore be the declaration of the law, the sphere in which
the State has the authority to set rules and prescribe person’s conduct.2
This interpretation is respected by international law, under which jurisdiction
refers to the power or authority that a State has and exercises over natural
and legal persons.

At the European
level, In the landmark case Bankovi? and others, jurisdiction was defined as
the right of a state to lawfully prescribe and enforce rules against others.3 In
principle, this authority is applied to a certain, defined territory. This
understanding brought, in the Bankovi? case,
to the primary interpretation of jurisdiction as territorial.4 In
fact, the Court’s approach to the application and interpretation of the ECHR is
based upon the Vienna Convention on the Law of the Treaties. Specifically,
references are made to Article 31 stating that “a treaty shall be interpreted
in good faith in accordance with the ordinary meaning to be given to the terms
of the treaty in their context and in the light of its object and purpose”. The
Court is of the view that the ordinary meaning of “jurisdiction” refers to a
territorial basis of the term and that other bases of jurisdiction existing
under international law – among others being nationality, residence, flag – are
exceptional and require special justification on a case-by-case assessment.5 It
stems from that, that the State has jurisdiction over a territory that is under
its control and rules and it has international human rights obligations to
those individuals within that territory.6
The jurisdiction under Article 1 is, therefore, a concept related to
responsibility that, to be established under international law, requires an
attribution of the conduct to the State and inconsistency of this act with
State’s international obligation.7

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Despite the
understanding of “jurisdiction” as in principle exclusively territorial, with
the evolving idea of the existence of jurisdiction exercised outside the
territory of a State, the Court in Bankovi?
identified four categories of exceptions to the general rule of territorial
jurisdiction:8

(a)  Extradition or expulsion cases that give
rise to concerns regarding potential violations of individuals’ human rights;

(b)  Extraterritorial effects cases ‘where the
acts of state authorities produced effects or were performed outside their own
territory’;

(c)   Effective control cases ‘when as a
consequence of a lawful or unlawful military action the State exercised control
of an area outside its national territory’; and

(d)  Cases involving the activities of a
State’s diplomatic or consular agents abroad.

Point (c) on effective control cases
developed in Bankovi? is the one that
has been identified and taken into consideration in cases concerning acts and
violations in the territory of the Turkish Republic of Northern Cyprus and it
is, therefore, the one that will be analyzed. In fact, as it has been explained
in Section I, the TRNC was subject to official Turkish military occupation starting
from 1974, when the coup d’état took
place. As a consequence, the strong military presence on the northern side of
the island qualified Turkey as the occupier and controller of that same
territory. The one of the TRNC, therefore, falls within the effective control
cases. In those type of disputes, facts have to be analyzed in order to
defining the State that will be hold responsible in case a human rights
violation is found. Tests at the international level have been developed with
the aim of establishing the “effective control” element. At the European level,
the European Court of Human Rights has established its own test, through its
case law, for the attribution of State responsibility, that will be explained
later.

The extraterritorial
jurisdiction concerns, therefore, the geographic scope of the ECHR and it is
determined by the exercise of authority and control of the State over
individuals or territories. The legitimacy of the control or authority is
irrelevant.9
In Pad v. Turkey, the Court
ruled that “a State may be held accountable for violations of the
Convention rights and freedoms of persons who are in the territory of another
State which does not necessarily fall
within the legal space of the Contracting States, but who are found to
be under the former State’s authority and control.”10

           

1.    The Control Criterion

 

“Jurisdiction as the power to prescribe
conduct can only effectively exist where a State is able to enforce its
regulations. Only where it is able to do so can it be said to have actual
authority and therefore jurisdiction”.11 Particularly,
a State may have jurisdiction over individuals when it is able make the latter
comply to its directives. This ability is what defines the notion of control.

According to the line of reasoning of the
Court, the criterion of control applies both to individuals and to territories.
The two situations will be analyzed below.

 

1.1.Control over Individuals

 

In Cyprus v. Turkey
(1975) it was first mentioned that jurisdiction of a State is established when
the latter is exercising actual authority over persons. With the term ‘actual’
it is meant that the factual circumstances are fundamental for the detection of
control. Specifically, the ECtHR held that ‘the High Contracting Parties are
bound to secure the said rights and freedoms to all persons under their actual
authority and responsibility, whether that authority is exercised within their
own territory or abroad’.12 This
discarded the idea of geographical limitation of the ECHR and highlighted,
instead, the importance of State’s conduct.13
Years later, this was confirmed in Pad v. Turkey, where the Court ruled that “a State
may be held accountable for violations of the Convention rights and freedoms of
persons who are in the territory of another State which does not necessarily fall within the legal space of the
Contracting States, but who are found to be under the former State’s
authority and control.”14 In Isaak v. Turkey case,
the applicants were relatives of Cypriot nationals who were killed in the UN
Buffer Zone during a demonstration organized and aimed at protesting against
the Turkish occupation of the Northern side of Cyprus. Despite the place where the
acts took place, the Court considered that the deceased were under the
effective control of Turkey through its agents who failed to prevent or stop
the attack. The assault was the determinant factor for the establishment of
jurisdiction.15
In the case of Al-Skeini and other v.
United Kingdom, the jurisdiction of the United Kingdom was established as
“‘United Kingdom, through its soldiers engaged in security operations in Basrah
…, exercised authority and control over individuals killed in the course of
such security operations”.16
Thus, the Court advocated for the existence of jurisdiction under Article 1, in
case of State Parties exercising “authority and control over individuals who
claimed to be victims of a violation of the ECHR, even in the absence of
effective control over the territory where the alleged violation occurred”.17

 

1.2.Control over a Geographic Area

 

State authority or control was also
considered in the context of control and State involvement over a geographic
area. In Loizidou v Turkey, the Strasbourg Court was confronted with an
alleged interference with the applicant’s property rights in the TRNC, for
which Turkey was being accused. The test that the Court did evaluated the control
exercised by Turkey over the geographic area of Northern Cyprus.18
The Court held that “The responsibility of a Contracting Party may also arise
when as a consequence of military action – whether lawful or unlawful – it
exercises effective control of an area outside its national territory.”19
It is clear that the legitimacy of the control exercised is an irrelevant
factor. Thus, in the light of the facts of the Loizidou case, the Court considered that a large number of military
forces of a State Party to the ECHR in the territory of another State is
evidence of its “overall” effective control. Given that, confirming what was
held in Cyprus v. Turkey, the State
is exercising its jurisdiction under Article 1 ECHR. In Issa and others v Turkey, the
applicants, Iraqi nationals, claimed that their relatives – shepherds from an
Iraqi province near the Turkish border – were assaulted and killed by Turkish
soldiers allegedly carrying out military operations in the area.20
The Court recognized that, during military operations in Iraq, Turkey may have
been de facto temporarily exercising effective control over the area of
Northern Iraq. Turkey could have been exercising its jurisdiction under Article
1 ECHR.21
However, due to a lack of evidence relating to the location of the operations
conducted and the one of the shepherds, the claim was dismissed.22
In fact, the threshold of the State involvement in this type of cases is
particularly high.

 

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