AS TO THE ADMISSIBILITY OF
Application no. 52207/99
by Vlastimir and Borka BANKOVIĆ, Zivana STOJANOVIĆ, Mirjana STOIMENOVSKI, Dragana JOKSIMOVIĆ and Dragan SUKOVIĆ
Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey and the United Kingdom
The European Court of Human Rights, sitting as a Grand Chamber composed of
Mr L. Wildhaber,
Mrs E. Palm,
Mr C.L. Rozakis,
Mr G. Ress,
Mr J.-P. Costa,
Mr Gaukur Jörundsson,
Mr L. Caflisch,
Mr P. Kūris,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mrs V. StráZnická,
Mr C. Bîrsan,
Mr J. Casadevall,
Mr J. Hedigan,
Mrs W. Thomassen,
Mr A.B. Baka,
Mr K. Traja, Judges,
and Mr P.J. Mahoney, Registrar,
Having regard to the above application lodged on 20 October 1999 and registered on 28 October 1999,
Having regard to the decision of 14 November 2000 by which the Chamber of the First Section to which the case had originally been assigned relinquished its jurisdiction in favour of the Grand Chamber (Article 30 of the Convention),
Having regard to the observations submitted by the respondent Governments and the observations in reply submitted by the applicants,
Having regard to the parties’ oral submissions on 24 October 2001 and their subsequent written comments in reply to Judges’ questions,
A. The circumstances of the case
2. The bombing of Radio Televizije Srbije (“RTS”)
3. Relevant proceedings before other international tribunals
B. Relevant international legal materials
1. The Treaty of Washington 1949
and Turkey acceded to the 1949 Treaty, the Federal Republic of Germany joined in 1955 and Spain also became a member in 1982. These countries were joined on 12 March 1999 by the Czech Republic, Hungary and Poland.
2. The Vienna Convention on the Law of Treaties 1969 (“the Vienna Convention 1969”)
“1. 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 light of its object and purpose.
3. There shall be taken into account, together with the context:
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.”
“Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure;
(b) leads to a result which is manifestly absurd.”
31 all relate to the agreement between the parties at the time when or after it received authentic expression in the text. Preparatory work did not have the same authentic character “however valuable it may sometimes be in throwing light on the expression of agreement in the text” (Yrbk. ILC (1966), ii. 219-220).
3. The drafting history of Article 1 of the Convention
“The Assembly draft had extended the benefits of the Convention to ‘all persons residing within the territories of the signatory States’. It seemed to the Committee that the term ‘residing’ might be considered too restrictive. It was felt that there were good grounds for extending the benefits of the Convention to all persons in the territories of the signatory States, even those who could not be considered as residing there in the legal sense of the word. The Committee therefore replaced the term ‘residing’ by the words ‘within their jurisdiction’ which are also contained in Article 2 of the Draft Covenant of the United Nations Commission.”
“henceforth the right of protection by our States, by virtue of a formal clause of the Convention, may be exercised with full force, and without any differentiation or distinction, in favour of individuals of whatever nationality, who on the territory of any one of our States, may have had reason to complain that [their] rights have been violated”.
4. The American Declaration on the Rights and Duties of Man 1948
“All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor.”
“While the extraterritorial application of the American Declaration has not been placed at issue by the parties, the Commission finds it pertinent to note that, under certain circumstances, the exercise of its jurisdiction over acts with an extra-territorial locus will not only be consistent with, but required by, the norms which pertain. The fundamental rights of the individual are proclaimed in the Americas on the basis of the principles of equality and non-discrimination – ‘without distinction as to race, nationality, creed or sex’. ... Given that individual rights inhere simply by virtue of a person’s humanity, each American State is obliged to uphold the protected rights of any person subject to its jurisdiction. While this most commonly refers to persons within a state’s territory, it may, under given circumstances, refer to conduct with an extraterritorial locus where the person concerned is present in the territory of one state, but subject to the control of another state – usually through the acts of the latter’s agents abroad. In principle, the inquiry turns not on the presumed victim’s nationality or presence within a particular geographic area, but on whether, under the specific circumstances, the State observed the rights of a person subject to its authority and control.”
“The States Parties to this Convention undertake to respect the rights and freedoms recognised herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination...”
5. The four Geneva Conventions on the Protection of War Victims 1949
6. Covenant on Civil and Political Rights 1966 (“CCPR 1966”) and its Optional Protocol 1966
“Each State Party to the present Convention undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant ...”
The Commission on Human Rights approved during its sixth session in 1950 a motion to include the words “within its territory and subject to its” in Article 2 § 1 of the draft Covenant. Subsequent proposals to exclude those words were defeated in 1952 and 1963. Subsequently, the Human Rights Committee has sought to develop, in certain limited contexts, the Contracting States’ responsibility for the acts of their agents abroad.
“A State Party to the Covenant that becomes a Party to the present Protocol recognises the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. ...”
A. Whether the applicants and their deceased relatives came within the “jurisdiction” of the respondent States within the meaning of Article 1 of the Convention
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”
1. The submissions of the respondent Governments
15 of the Convention to imply, as the applicants wrongly assume, that Article 15 § 2 refers to “war” or “public emergency” situations outside as well as inside the territories of the Contracting States. Accordingly, Article 15 § 2 does not strengthen the applicants’ broad interpretation of Article 1 of the Convention.
competent to review the participation of Contracting States in military missions all over the world in circumstances when it would be impossible for those States to secure any of the Convention rights to the inhabitants of those territories and even in situations where a Contracting State had no active part in the relevant mission. The resulting Convention exposure would, according to the Governments, risk undermining significantly the States’ participation in such missions and would, in any event, result in far more protective derogations under Article 15 of the Convention. In addition, they suggest that international humanitarian law, the ICTY and, most recently, the International Criminal Court (“ICC”) exist to regulate such State conduct.
2. The submissions of the applicants
(preliminary objections and merits) so that the extent of the positive obligation under Article 1 of the Convention to secure Convention rights would be proportionate to the level of control in fact exercised. They consider that this approach to jurisdiction in Article 1 would provide manageable criteria by which the Court could deal with future complaints arising out of comparable circumstances.
Article 1 positive obligation could be similarly limited. They consider that the concepts of “effective control” and “jurisdiction” must be flexible enough to take account of the availability and use of modern precision weapons which allow extra-territorial action of great precision and impact without the need for ground troops. Given such modern advances, reliance on the difference between air attacks and ground troops has become unrealistic.
3. The Court’s assessment
result of that extra-territorial act, capable of falling within the jurisdiction of the respondent States (Drozd and Janousek v. France and Spain, judgment of 26 June 1992, Series A no. 240, § 91, the above-cited Loizidou judgments (preliminary objections and merits), at § 64 and § 56 respectively, and the Cyprus v. Turkey judgment, cited above, at § 80).
(a) The applicable rules of interpretation
(b) The meaning of the words “within their jurisdiction”
Convention could not be interpreted solely in accordance with the intentions of their authors expressed more than forty years previously to the extent that, even if it had been established that the restrictions at issue were considered permissible under Articles 25 and 46 when the Convention was adopted by a minority of the then Contracting Parties, such evidence “could not be decisive”.
66. Accordingly, and as the Court stated in the Soering case:
“Article 1 sets a limit, notably territorial, on the reach of the Convention. In particular, the engagement undertaken by a Contracting State is confined to ‘securing’ (‘reconnaître’ in the French text) the listed rights and freedoms to persons within its own ‘jurisdiction’. Further, the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States.”
(c) Extra-territorial acts recognised as constituting an exercise of jurisdiction
70, and the Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, § 103).
However, the Court notes that liability is incurred in such cases by an action of the respondent State concerning a person while he or she is on its territory, clearly within its jurisdiction, and that such cases do not concern the actual exercise of a State’s competence or jurisdiction abroad (see also, the above-cited Al-Adsani judgment, at § 39).
On the merits, the Court found that it was not necessary to determine whether Turkey actually exercised detailed control over the policies and actions of the authorities of the “Turkish Republic of Northern Cyprus” (“TRNC”). It was obvious from the large number of troops engaged in active duties in northern Cyprus that Turkey’s army exercised “effective overall control over that part of the island”. Such control, according to the relevant test and in the circumstances of the case, was found to entail the responsibility of Turkey for the policies and actions of the “TRNC”. The Court concluded that those affected by such policies or actions therefore came within the ”jurisdiction” of Turkey for the purposes of Article 1 of the Convention. Turkey’s obligation to secure the rights and freedoms set out in the Convention was found therefore to extend to northern Cyprus.
In its subsequent Cyprus v. Turkey judgment (cited above), the Court added that since Turkey had such “effective control”, its responsibility could not be confined to the acts of its own agents therein but was engaged by the acts of the local administration which survived by virtue of Turkish support. Turkey’s “jurisdiction” under Article 1 was therefore considered to extend to securing the entire range of substantive Convention rights in northern Cyprus.
“In so far as the applicant complains under Article 6 ... about the stance taken by the Government of the United Kingdom in the Irish proceedings, the Court does not consider it necessary to address in the abstract the question of whether the actions of a Government as a litigant before the courts of another Contracting State can engage their responsibility under Article 6 ... The Court considers that, in the particular circumstances of the case, the fact that the United Kingdom Government raised the defence of sovereign immunity before the Irish courts, where the applicant had decided to sue, does not suffice to bring him within the jurisdiction of the United Kingdom within the meaning of Article 1 of the Convention.”
(d) Were the present applicants therefore capable of coming within the “jurisdiction” of the respondent States?
The Court is inclined to agree with the Governments’ submission that the text of Article 1 does not accommodate such an approach to “jurisdiction”. Admittedly, the applicants accept that jurisdiction, and any consequent State Convention responsibility, would be limited in the circumstances to the commission and consequences of that particular act. However, the Court is of the view that the wording of Article 1 does not provide any support for the applicants’ suggestion that the positive obligation in Article 1 to secure “the rights and freedoms defined in Section I of this Convention” can be divided and tailored in accordance with the particular circumstances of the extra-territorial act in question and, it considers its view in this respect supported by the text of Article 19 of the Convention. Indeed the applicants’ approach does not explain the application of the words “within their jurisdiction” in Article 1 and it even goes so far as to render those words superfluous and devoid of any purpose. Had the drafters of the Convention wished to ensure jurisdiction as extensive as that advocated by the applicants, they could have adopted a text the same as or similar to the
contemporaneous Articles 1 of the four Geneva Conventions of 1949 (see § 25 above).
Furthermore, the applicants’ notion of jurisdiction equates the determination of whether an individual falls within the jurisdiction of a Contracting State with the question of whether that person can be considered to be a victim of a violation of rights guaranteed by the Convention. These are separate and distinct admissibility conditions, each of which has to be satisfied in the afore-mentioned order, before an individual can invoke the Convention provisions against a Contracting State.
relevant case-law on the former provision was cited before this Court by the applicants.
It is true that, in its above-cited Cyprus v. Turkey judgment (at § 78), the Court was conscious of the need to avoid “a regrettable vacuum in the system of human-rights protection” in northern Cyprus. However, and as noted by the Governments, that comment related to an entirely different situation to the present: the inhabitants of northern Cyprus would have found themselves excluded from the benefits of the Convention safeguards and system which they had previously enjoyed, by Turkey’s “effective control” of the territory and by the accompanying inability of the Cypriot Government, as a Contracting State, to fulfil the obligations it had undertaken under the Convention.
In short, the Convention is a multi-lateral treaty operating, subject to Article 56 of the Convention2, in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States. The FRY clearly does not fall within this legal space. The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States. Accordingly, the desirability of avoiding a gap or vacuum in human rights’ protection has so far been relied on by the Court in favour of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention.
4. The Court’s conclusion
B. Remaining admissibility issues
These questions included the alleged several liability of the respondent States for an act carried out by an international organisation of which they are members, whether the applicants had exhausted effective remedies available to them within the meaning of Article 35 § 1 of the Convention and whether the Court was competent to consider the case given the principles established by the above-cited Monetary Gold judgment of the ICJ.
C. Summary and conclusion
For these reasons, the Court unanimously
Declares the application inadmissible.
1 The United Kingdom has withdrawn its derogation as of 26 February 2001, except in relation to Crown Dependencies. Turkey reduced the scope of its derogation by communication to the Secretary General of the Council of Europe dated 5 May 1992.
22. Article 56 § 1 enables a Contracting State to declare that the Convention shall extend to all or any of the territories for whose international relations that State is responsible.