QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE FORBES
| THE QUEEN - on the Application of - MAZIN JUMAA GATTEH AL SKEINI and others
|- and -
|THE SECRETARY OF STATE FOR DEFENCE
|The Redress Trust
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Professor Christopher Greenwood QC, Philip Sales and Cecilia Ivimy (instructed by The Treasury Solicitor) for the Defendant
Edward Fitzgerald QC, Mark Henderson and Joseph Middleton (instructed by Bhatt Murphy) for the Intervener by way of written submissions
Hearing dates: 28th, 29th and 30th July and 30 November 2004
Crown Copyright ©
1. In this judgment of the court, the Divisional Court considers the claims of six claimants, relatives respectively of Iraqi citizens who have died in provinces of Iraq where and at a time when the United Kingdom was recognised as an occupying power (viz between 1 May 2003 and 28 June 2004). The first five claimants' relatives were shot in separate armed incidents involving British troops. The sixth claimant's son, Mr Baha Mousa, died in a military prison in British custody. The claims are for judicial review, on the basis that article 2 and (in the case of the sixth claimant) also article 3 of the European Convention of Human Rights applies, by reason of the Human Rights Act 1998, to these claims.
2. This judgment is only concerned with two preliminary issues: (1) whether the deaths took place within the jurisdiction of the United Kingdom so as to fall within the scope of (a) the Convention and (b) the Act; and (2) whether, if so, there has been a breach of the requirements under articles 2 and 3 of the Convention regarding an adequate enquiry into those deaths.
3. The judgment first decides, on the basis of a consideration of Strasbourg jurisprudence, that a state party's jurisdiction within article 1 of the Convention ("The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention") is essentially territorial; that exceptionally such jurisdiction extends to outposts of the state's authority abroad such as embassies and consulates; that this exception can apply to a prison operated by a state party in the territory of another state with the consent of that state; but that it does not apply to the total territory of another state which is not itself a party to the Convention, even if that territory is in the effective control of the first state; and that therefore only the case of the sixth complainant, in respect of his son's death in a British prison in Iraq, was within the United Kingdom's jurisdiction and thus within the scope of the Convention. It follows that, in the opinion of the court, the claims of the first five claimants must fail.
4. Secondly, the judgment decides, on the basis of a consideration of the Act, that its scope is also essentially territorial but also extends exceptionally, like the Convention, to the case of outposts of the United Kingdom's authority abroad such as embassies and consulates and in this case the prison in Iraq in which the death of Mr Baha Mousa occurred. It follows that, in the opinion of the court, the sixth claim is capable of falling within the Convention and the Act.
5. Thirdly, the judgment decides, on the basis of a consideration of the facts relating to the death of Mr Baha Mousa and the surrounding circumstances, that the enquiries that have taken place into his death are not adequate in terms of the implied procedural requirements of articles 2 and 3 of the Convention.
|The post-conflict government and administration of Iraq||14-39|
|The position of the United Kingdom's armed forces in Iraq during the
relevant period (i.e. 1 May 2003 to 28 June 2004)
|Investigations into civilian deaths||47-54|
|The facts of each of the six cases||55-89|
|Case 1: Hazim Jum'aa Gatteh Al-Skeini||56-59|
|Case 2: Muhammad Abdul Ridha Salim||60-63|
|Case 3: Hannan Mahaibas Sadde Shmailawi||64-67|
|Case 4: Waleed Sayay Muzban||68-76|
|Case 5: Raid Hadi Sabir Al Musawi||77-80|
|Case 6: Baha Mousa||81-89|
|Jurisdiction under the Convention||90|
|The provisions of the Convention||91-95|
|The travaux préparatoires of the Convention||96-99|
|Other relevant international texts||100-107|
|The essential structure of the issue between the parties concerning the
jurisdiction of the Convention
|Bankovic v. Belgium (2001)||117-126|
|The Strasburg jurisprudence||127-201|
|X v. Federal Republic of Germany||128-129|
|Cyprus v. Turkey||130-137|
|Hess v. United Kingdom||138-140|
|X and Y v. Switzerland||141-143|
|X v. United Kingdom||144-145|
|Tyrer v. United Kingdom||146-148|
|W v. United Kingdom||149|
|Soering v. United Kingdom||150-153|
|Thanh v. United Kingdom||154|
|Chrysostomos, Papachrysostomou and Loizidou v. Turkey||155-157|
|Drozd and Janousek v. France and Spain||158-166|
|WM v. Denmark||167-169|
|Loizidou v. Turkey||170-174|
|Loizidou v. Turkey (Merits)||175-176|
|Cyprus v. Turkey||177-180|
|Yonghong v. Portugal||181-182|
|Cyprus v. Turkey||183-187|
|Al-Adsani v. United Kingdom||188-189|
|Bankovic v Belgium||190-191|
|Öcalan v. Turkey||192-195|
|Ilascu v. Moldova and Russia||196-201|
|Issa v Turkey||202-222|
| R (Abbasi and another) v. Secretary of State for Foreign and
Commonwealth Affairs and Secretary of State for the Home
| R (on the application of Quark Fishing Ltd) v. Secretary of State
for Foreign and Commonwealth Affairs
|Regina (Ullah) v. Special Adjudicator||232-239|
|Jurisprudence of other nations||240-243|
|Cook v. The Queen||241|
|Rasul v. Bush||242|
|Conclusions derived from this jurisprudence||244-280|
|The principles as applied to the facts||281-288|
|Jurisdiction under the Human Rights Act 1998||289-307|
|R(B) v. Secretary of State for the Foreign and Commonwealth Office||308-317|
|Procedural requirements of articles 2 and 3 of the Convention||318-325|
|The procedural obligation as applied on the facts||326-341|
Lord Justice Rix :
"2. There shall be a hearing to determine the following preliminary issues:
2.1 Whether the European Convention of [Human] Rights and the Human Rights Act 1998 apply to the circumstances of this case; and
2.2 Whether the procedural duty under Article 2 of the European Convention of Human Rights has been violated by the Defendant."
The post-conflict government and administration of Iraq
"…the United States, United Kingdom and Coalition partners, acting under existing command and control arrangements through the Commander of Coalition Forces, have created the Coalition Provisional Authority (CPA), which includes the Office of Reconstruction and Humanitarian Assistance (ORHA), to exercise powers of government temporarily, and as necessary, especially to provide security, to allow the delivery of humanitarian aid, and to eliminate weapons of mass destruction."
The permanent representatives' letter to the Security Council went on to state:
"The United States, United Kingdom, and Coalition partners are facilitating the establishment of representative institutions of government, and providing for the responsible administration of the Iraqi financial sector, for the transparent operation and repair of Iraq's infrastructure and natural resources, and for the progressive transfer of administrative responsibilities to such representative institutions of government, as appropriate. Our goal is to transfer responsibility for administration to representative Iraqi authorities as early as possible."
"The CPA is vested with all executive, legislative and judicial authority necessary to achieve its objectives, to be exercised under relevant UN Security Council resolutions, including resolution 1483 and the laws and usages of war. This authority shall be exercised by the CPA Administrator."
The position of The United Kingdom's armed forces in Iraq during the relevant period (i.e. 1 May 2003 to 28 June 2004)
"10. Iraq is the most volatile and violent place in which I have served. The population as a whole possessed a lot of weaponry, with at least two weapons in most households. In addition, the tribes, criminal gangs, and terrorist groups were very well armed with heavy machine guns, rocket-propelled grenades, bomb-making kit and a wide variety of other weapons.
11. The Rule of Law, which normally operates in a civil society, simply did not exist when we arrived in Iraq. The police were ineffective, they were not respected, they were corrupt, and they were easily intimidated by the tribes …
12. The area was rife with tribal feuds and organised crime. Extortion, kidnapping, carjacking, looting and oil smuggling were the key criminal pursuits. When the criminals were conducting these activities they went heavily armed and they were always ready to shoot at us if we came across them. …I suspect we had 2 or 3 shooting incidents involving armed criminals every night.
13. Tribal feuds were often extremely violent and dangerous … where heavy machine guns were regularly fired at each other. …
14. Terrorists, who included the former regime extremists, targeted us quite actively. Their attacks ranged from drive-by shootings to bombings. …"
"CARD A – GUIDANCE FOR OPENING FIRE FOR SERVICE PERSONNEL
AUTHORISED TO CARRY ARMS AND AMMUNITION ON DUTY
1. This guidance does not affect your inherent right to self-defence. However, in all situations you are to use no more force than absolutely necessary.
FIREARMS MUST ONLY BE USED AS A LAST RESORT
2. When guarding property, you must not use lethal force other than for the protection of human life.
PROTECTION OF HUMAN LIFE
3. You may only open fire against a person if he/she is committing or about to commit an act likely to endanger life and there is no other way to prevent the danger.
4. A challenge MUST be given before opening fire unless:
a. To do this would be to increase the risk of death or grave injury to you or any other persons other than the attacker(s),
b. You or others in the immediate vicinity are under armed attack.
5. You are to challenge by shouting:
"NAVY, ARMY, AIR FORCE,
STOP OR I FIRE." Or words to that effect.
6. If you have to open fire you are to:
a. Fire only aimed shots,
b. Fire no more rounds than are necessary,
C. Take all reasonable precautions not to injure anyone other than your target."
Investigations into civilian deaths
"53. (The 21 June 2003 policy) was replaced on 28 July 2003 by a further policy issued by MND (SE) … This replacement policy required that all such incidents should be reported to MND (SE) by means of a serious incident report immediately following the incident. If the Commanding Officer (CO) of the soldier was satisfied, on the basis of the information available to him, that the soldier had acted lawfully and within the rules of engagement, then there was no requirement to initiate an investigation by the military police. The CO would record his decision in writing to his Brigade Commander. If the CO was not so satisfied, or if he had insufficient information to arrive at a decision, he was required to initiate a military police investigation.
54. Between January and April 2004 there was a further reconsideration of this policy. This was prompted by the fact that the environment had become less hostile and also by the considerable media and Parliamentary interest in incidents involving UK forces in which Iraqis had died. On 24 April, a new policy was adopted by MND (SE) which required all shooting incidents involving UK forces which result in a civilian being killed or injured to be investigated by SIB (RMP). Exceptionally the Brigade Commander may decide that an investigation is not necessary and in any such case the decision must be notified to the Commander MND (SE) in writing."
"36. The form of an investigation into an incident would vary according to the security situation on the ground and the circumstances of the individual case. Generally, it would involve the Company Commander or Commanding Officer taking statements from the members of the patrol involved, and reviewing radio logs. It might also include taking photographs of the scene. Sometimes there would be further investigation through a meeting with the family/tribe of the person killed. Investigations at unit level, however, would not include a full forensic examination. Within the Brigade, we had no forensic capability.
37. Once he had investigated the incident, the Commanding Officer would then forward a report to me, stating whether in his opinion the soldiers had acted within the Rules of Engagement, or whether the incident was required to be referred to the Special Investigation Bureau of the Royal Military Police (SIB). The Commanding Officer was required to call in the SIB to investigate if there was any doubt that an individual had not acted within the Rules of Engagement. If his decision was that an SIB investigation was needed, he would require this himself directly."
The facts of each of the six cases
"8. … When I saw the corpse I burst into tears and I still cannot bear to think about what I saw. … I was horrified to see that my son had been severely beaten and his body was literally covered in blood and bruises. The cover was removed from his body to allow me to see all of it. He had a badly broken nose. There was blood coming from his nose and mouth. The skin on one side of his face had been torn away to reveal the flesh beneath. There were severe patches of bruising over all of his body. The skin on his wrists had been torn off and the skin on his forehead torn away and there was no skin under his eyes either. I literally could not bear to look at him.
9. I insisted that there was a proper post-mortem and a proper medical report on my son's death. A Professor Hill came over from the UK and he conducted an autopsy on Baha. … I was not allowed to see a copy of his report. However he told me in front of one of the clerks that he thought that my son had died from asphyxiation. …"
Jurisdiction under the Convention
The provisions of the Convention
"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention."
"1. Any state may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary General of the Council of Europe that the present Convention shall, subject to paragraph 4 of this Article, extend to all or any of the territories for whose international relations it is responsible…
3. The provisions of this Convention shall be applied in such territories with due regard, however, to local requirements.
4. Any State which has made a declaration in accordance with paragraph 1 of this article may at any time thereafter declare on behalf of one or more of the territories to which the declaration relates that it accepts the competence of the Court to receive applications from individuals, non-governmental organisations or groups of individuals as provided by Article 34 of the Convention."
"1. Any State may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision…"
"Being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration."
The travaux préparatoires 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" (at vol III, p 260).
"…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 nationals 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."
"63. Finally, the court finds clear confirmation of this essentially territorial notion of jurisdiction in the travaux preparatoires which demonstrate that the expert intergovernmental committee replaced the words 'all persons residing within their territories' with a reference to persons 'within their jurisdiction' with a view to expanding the convention's application to others who may not reside, in a legal sense, but who are, nevertheless, on the territory of the contracting states (para 19, above)…
65…In any event, the extracts from the travaux preparatoires detailed above constitute a clear indication of the intended meaning of art 1 of the convention which cannot be ignored. The court would emphasise that it is not interpreting art 1 'solely' in accordance with the travaux preparatoires or finding those travaux 'decisive'; rather this preparatory material constitutes clear confirmatory evidence of the ordinary meaning of art 1 of the convention as already identified by the court (art 32 of the Vienna Convention)."
Other relevant international texts
"The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances."
"Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction."
The parties were at issue as to whether this could apply to the United Kingdom in Iraq. Mr Greenwood submitted that it did not: the United Kingdom could not have taken legislative or judicial measures of the kind envisaged since legislative authority was in the hands of the CPA and judicial authority was largely in the hands of the Iraqi courts. Mr Singh, however, submitted that the phrase "any territory under its jurisdiction" was in any event plainly wider than article 1 of the Convention's "within [its] jurisdiction".
"Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised."
Mr Singh stressed the importance for the argument on article 1 jurisdiction of the acceptance by the Secretary of State of the application of this test to the United Kingdom in the relevant provinces of Iraq. Similarly, the Fourth Geneva Convention refers to the obligations of an "Occupying Power" in "occupied territory".
"The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country."
The essential structure of the issue between the parties concerning the jurisdiction of the Convention
Bankovic v. Belgium (2001)
"… the real connection between the applicants and the respondent states is the impugned act which, wherever decided, was performed, or had its effects, outside of the territory of those states (the extra-territorial act). It considers that the essential question to be examined therefore is whether the applicants and their deceased relatives were, as a result of that extra-territorial act, capable of falling within the jurisdiction of the respondent states…"
"59. As to the 'ordinary meaning' of the relevant term in art 1 of the convention, the court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a state is primarily territorial. While international law, does not exclude a state's exercise of jurisdiction extra-territorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant states (Mann 'The Doctrine of Jurisdiction in International Law' RdC 1964, vol 1; Mann 'The Doctrine of Jurisdiction in International Law, Twenty Years Later' RdC 1984, vol 1; Bernhardt Encyclopaedia of Public International Law edition 1997, vol 3, pp55-59 'Jurisdiction of States' and edition 1995, vol 2, pp337-343 'Extra-territorial Effects of Administrative, Judicial and Legislative Acts'; Oppenheim's International Law (9th Edn, 1992), col 1, para 137; Dupuy Droit International Public (4th edn, 1998), p61; and Brownlie Principles of International Law (5th edn, 1998)pp287, 301 and 312-314).
60. Accordingly, for example, a state's competence to exercise jurisdiction over its own nationals abroad is subordinate to that state's and other states' territorial competence (Higgins Problems and Process (1994) p73 and Nguyen Quoc Dinh Droit International Public (6th edn, 1999), p500). In addition, a state may not actually exercise jurisdiction on the territory of another without the latter's consent, invitation or acquiescence, unless the former is an occupying state in which case it can be found to exercise jurisdiction in that territory, at least in certain respects (Bernhardt Encyclopaedia of Public International Law edition 1997, vol 3, pp vol 3, p59 and edition 1995, vol 2, pp 338-340; Oppenheim's International Law (9th edn, 1992), vol 1, para 137; Dupuy Droit International Public(4th edn, 1998), pp64-65; Brownlie Principles of International Law (5th edn, 1998), p313; Cassese International Law (2001) p89; and, most recently, the 'Report on the Preferential Treatment of National Minorities by their Kin-States' adopted by the Venice Commission at its 48th Plenary Meeting, Venice, 19-20 October 2001).
61. The court is of the view, therefore, that art 1 of the convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case (see, mutatis mutandis and in general, Select Committee of Experts on Extraterritorial Criminal Jurisdiction, European Committee on Crime Problems, Council of Europe, 'Extraterritorial Criminal Jurisdiction', Report published in 1990, pp8-30).
62. The court finds state practice in the application of the convention since its ratification to be indicative of a lack of any apprehension on the part of the contracting states of their extra-territorial responsibility in contexts similar to the present case. Although there have been a number of military missions involving contracting states acting extra-territorially since their ratification of the convention (inter alia, in the Gulf, in Bosnia and Herzegovina and in the FRY), no state has indicated a belief that its extra-territorial actions involved an exercise of jurisdiction within the meaning of art 1 of the convention by making a derogation pursuant to art 15 of the convention."
"67. In keeping with the essentially territorial notion of jurisdiction, the court has accepted only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of art 1 of the convention."
"… 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…" (at para 68).
In other words, although such cases might involve extra-territorial effects, they were not proper examples of extra-territorial jurisdiction.
"71. In sum, the case law of the court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a contracting state is exceptional: it has done so when the respondent state, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by that government…
"73. Additionally, the court notes that other recognised instances of the extra-territorial exercise of jurisdiction by a state include cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state. In these specific situations, customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction by the relevant state."
"79. Fifthly and more generally, the applicants maintain that any failure to accept that they fell within the jurisdiction of the respondent states would defeat the ordre public mission of the convention and leave a regrettable vacuum in the convention system of human rights' protection.
80. The court's obligation, in this respect, is to have regard to the special character of the convention as a constitutional instrument of European public order for the protection of human beings and its role, as set out in art 19 of the convention, is to ensure the observance of the engagements undertaken by the contracting parties (Loizidou v Turkey (preliminary objections) (1995) 20 EHRR 99 at para 93). It is therefore difficult to contend that a failure to accept the extra-territorial jurisdiction of the respondent states would fall foul of the convention's ordre public objective, which itself underlines the essentially regional vocation of the convention system, or of art 19 of the convention which does not shed any particular light on the territorial ambit of that system.
It is true that in its Cyprus v Turkey judgment ((2001) 11 BHRC at para 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 was 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 benefit 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 art 56 of the convention, in an essentially regional context and notably in the legal space (espace juridique) of the contracting states. (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.) 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 upon 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."
The Strasbourg jurisprudence
"Whereas, in certain respects, the nationals of a Contracting State are within its "jurisdiction" even when domiciled or resident abroad; whereas, in particular, the diplomatic and consular representatives of their country of origin perform certain duties with regard to them which may, in certain circumstances, make that country liable in respect of the Convention;"
It appears that the Commission was prepared to treat X as a German citizen.
"the Commission had no jurisdiction ratione loci to examine the application as Cyprus did not fall under Turkish jurisdiction. Turkey had not extended her jurisdiction to the island of Cyprus since she had not annexed a part of the island nor established a military or civil government there. The administration of the Turkish Cypriot community had absolute jurisdiction over part of the island. Moreover, Turkey could not be held liable under Art. 63 of the Convention since she was not responsible for the international relations of either the whole or a part of Cyprus."
"It was clear from the language and object of Art. 1 and from the purpose of the Convention as a whole that the High Contracting Parties were bound to secure the rights and freedoms defined in the Convention to all persons under their actual and exclusive authority, whether that authority was exercised within their territory or abroad…
In the occupied part of Cyprus the actual and exclusive authority was exercised by the Turkish army under the direction of the Turkish Government; indeed, through various official statements and activities Turkey was treating this area as being under her control and supervision. The Turkish Cypriot community had neither legal nor actual authority over the area.
The operation of the Convention in the occupied part of Cyprus would become ineffective if one accepted the respondent Government's submission that alleged violations of the Convention in that area could not be examined by the Commission. It followed from Art. 17 that the Convention did not allow such a vacuum in the protection of its rights and freedoms."
"that this term is not, as submitted by the respondent Government, equivalent to or limited to the national territory of the High Contracting Party concerned. It is clear from the language, in particular of the French text, and the object of this Article, and from the purpose of the Convention as a whole, 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 territory or abroad. The Commission refers in this respect to its decision on the admissibility of…X v. Federal Republic of Germany…"
"The Commission further observes that nationals of a State, including registered ships and aircrafts, are partly within its jurisdiction wherever they may be, and that authorised agents of a State, including diplomatic and consular agents and armed forces, not only remain under its jurisdiction when abroad but bring any other persons or property "within the jurisdiction" of that State, to the extent that they exercise authority over such persons or property. Insofar as, by their acts or omissions, they affect such persons or property, the responsibility of the State is engaged."
"It follows that these armed forces are authorised agents of Turkey and that they bring any other persons or property within Cyprus "within the jurisdiction" of Turkey, in the sense of Art. 1 of the Convention, to the extent that they exercise control over such persons or property."
"The Commission first observes that in the present case the exercise of authority by the respondent Government takes place not in the territory of the United Kingdom but outside its territory. As the Commission has already decided, a State is under certain circumstances responsible under the Convention for the actions of its authorities outside its territory…X v. Federal Republic of Germany. The Commission is of the opinion that there is in principle, from a legal point of view, no reason why the acts of British authorities in Berlin should not entail the liability of the United Kingdom under the Convention…"
"It is clear, in this respect, from the constant jurisprudence of the Commission that authorised agents of a State, including diplomatic or consular agents, bring other persons or property within the jurisdiction of that State to the extent that they exercise authority over such persons or property. Insofar as they affect such persons or property by their acts or omissions, the responsibility of the State is engaged."
"Historically, geographically, and culturally, the Island has always been included in the European family of nations and must be regarded as sharing fully that 'common heritage of political traditions, ideals, freedom and the rule of law' to which the Preamble to the Convention refers. The Court notes, in this connection, that the system established by Article 63 was primarily designed to meet the fact that, when the Convention was drafted, there were still certain colonial territories whose state of civilisation did not, it was thought, permit the full application of the Convention."
86. Article 1 of the Convention, which provides that 'the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I,' 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. Article 1 cannot be read as justifying a general principle to the effect that, notwithstanding its extradition obligations, a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention."
"It is clear from the case-law of the Commission that the concept of jurisdiction in Article 1 (Art. 1) is not limited to the territory of a High Contracting Party and may extend in certain circumstances to matters which occur outside their territory (see e.g…Cyprus v. Turkey, loc. cit.).
However, the Convention system also provides the State with the option of extending the Convention to territories for whose international relations it is responsible by lodging a declaration under Article 63…It is an essential part of the scheme of Article 63 (Art. 63) that a declaration extending the Convention to such a territory be made before the Convention applies either to acts of the dependent Government or to policies formulated by the Government of a Contracting Party in the exercise of its responsibilities in relation to such territory. Accordingly, in the present case even if the Commission were to accept that the acts of the Hong Kong authorities were based on United Kingdom policy, it must find that it has no competence to examine the application since no declaration…has been made in respect of Hong Kong."
"the application of the Convention extends beyond the national frontiers of the High Contracting Parties and includes acts of State organs abroad."
For this proposition it cited extracts from its 1975 decision in Cyprus v. Turkey (see paras 130/137 above).
"90. This finding does not absolve the Court from considering whether the applicants come under the 'jurisdiction' of France or Spain within the meaning of Article 1 of the Convention because of their conviction by an Andorran court."
"91. The term 'jurisdiction' is not limited to the national territory of the High Contracting Parties; their responsibility can be involved because of acts of their authorities producing effects outside their own territory."
"The question to be decided is whether the acts complained of by Mr Drozd and Mr Janousek can be attributed to France or Spain or both, even though they were not performed on the territory of those States."
"97. In short, the objection of lack of jurisdiction ratione personae must also be upheld."
"The Commission notes that these complaints are directed mainly against Danish diplomatic authorities in the former DDR. It is clear, in this respect, from the constant jurisprudence of the Commission that authorised agents of a State, including diplomatic or consular agents, bring other persons or property within the jurisdiction of that State to the extent that they exercise authority over such persons or property. In so far as they affect such persons or property by their acts or omissions, the responsibility of the State is engaged [citing X v. United Kingdom]. Therefore, in the present case the Commission is satisfied that the acts of the Danish ambassador complained of affected persons within the jurisdiction of the Danish authorities within the meaning of Article 1…
"He maintains that he was deprived of his right to move freely on Danish territory, that he was, together with his 17 friends, collectively expelled and that the decision to expel him was not taken in accordance with law.
"The Commission finds that although, as stated above, a State party to the Convention may be held responsible either directly or indirectly for acts committed by its diplomatic agents, the provisions invoked by the applicant must be interpreted in the light of the special circumstances which prevail in situations as the one which is at issue in the present case. It is clear that Embassy premises are not part of the territory of the sending State. Consequently as the applicant, while the incident took place, was not on Danish territory, the provisions invoked by him are not applicable to his case.
This part of the application is accordingly incompatible ratione materiae…"
"62. In this respect the Court recalls that, although article 1 sets limits on the reach of the Convention, the concept of "jurisdiction" under the provision is not restricted to the national territory of the High Contracting Parties. According to its established case law, for example, the Court has held that the extradition or expulsion of a person by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention [citing Soering]. In addition, the responsibility of Contracting Parties can be involved because of acts of their authorities, whether performed within or outside national boundaries, which produce effects outside their own territory [citing Drozd at para 91, see at paras 158/160 above].
Bearing in mind the object and purpose of the Convention, 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. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration. [emphasis added]
63. In this connection the respondent Government have acknowledged that the applicant's loss of control of her property stems from the occupation of the northern part of Cyprus by Turkish troops and the establishment there of the "TRNC" [the "Turkish Republic of Northern Cyprus", a successor to Turkey's recognised so-called "Turkish Federated State of Cyprus"]. Furthermore, it has not been disputed that the applicant was prevented by Turkish troops from gaining access to her property.
64. It follows that such acts are capable of falling within Turkish "jurisdiction" within the meaning of Article 1 of the Convention. Whether the matters complained of are imputable to Turkey and give rise to State responsibility are thus questions which fall to be determined by the Court at the merits phase."
"86. Finally, although the argument has not been elaborated on by the respondent Government, the Court does not consider that the application of Article 63(4) [now 56(4)], by analogy, provides support for the claim that a territorial restriction is permissible under Articles 25 and 46.
According to this argument, Article 25 could not apply beyond national boundaries to territories, other than those envisaged by Article 63, unless the State specifically extended it to such territories. As a corollary, the State can limit acceptance of the right of individual petition to is national territory – as has been done in the instant case.
87. The Court first recalls that in accordance with the concept of "jurisdiction" in Article 1 of the Convention, State responsibility may arise in respect of acts and events outside State frontiers [citing its own para 62 above]. It follows that there can be no requirement, as under Article 63(4) in respect of the overseas territories referred to in that provision, that the Article 25 acceptance be expressly extended before responsibility can be incurred."
"52. As regards the issue of imputability, the Court recalls in the first place that in its above-mentioned Loizidou v. Turkey (Preliminary Objections) judgment it stressed that under its established case law the concept of "jurisdiction" under Article 1 of the Convention is not restricted to the national territory of the Contracting States. Accordingly, the responsibility of Contracting States can be involved by acts and omissions of their authorities which produce effects outside their own territory. Of particular significance to the present case the Court held, in conformity with the relevant principles of international law governing State responsibility, that the responsibility of a Contracting Party could arise when as a consequence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration…
56…It is not necessary to determine whether, as the applicant and the Government of Cyprus have suggested, Turkey actually exercises detailed control over the policies and actions of the authorities of the "TRNC". It is obvious from the large number of troops engaged in active duties in northern Cyprus that her army exercises effective overall control over that part of the island. Such control, according to the relevant test and in the circumstances of the case, entails her responsibility for the policies and actions of the "TRNC". Those affected by such policies and actions therefore come within the "jurisdiction" of Turkey for the purposes of Article 1 of the Convention. Her obligation to secure to the applicant the rights and freedoms set out in the Convention therefore extends to the northern part of Cyprus."
"13. In this respect, the Commission follows the approach adopted by the Court in the Loizidou v. Cyprus (Preliminary Objections) judgment of 23 March 1995 [see above at paras 170/174]: It will limit the examination of the question whether its competence to examine the applicant Government's complaints is excluded on the grounds that they concern matters which cannot fall within the jurisdiction of the respondent Government, leaving open, at this stage, the question of whether the respondent Government is actually responsible under the Convention for the acts which form the basis of the applicant Government's complaints and the further question as to which are the principles that govern State responsibility under the Convention in a situation like that obtaining in the northern part of Cyprus. The Commission's examination will thus be limited to determining whether the matters complained of by the applicant Government are capable of falling within the jurisdiction of Turkey even though they occur outside her national territory."
"The Commission recalls that, although Article 1 sets limits on the reach of the Convention, the concept of "jurisdiction" under this provision is not restricted to the national territory of the High Contracting Parties…This situation is similar to that in the Loizidou application where the Court held that the acts complained of were capable of falling within Turkish jurisdiction within the meaning of Article 1. The Commission reaches the same conclusion concerning the above complaints…This finding does not in any way prejudge the questions to be determined at the merits stage of the proceedings, namely whether the matters complained of are actually imputable to Turkey and give rise to her responsibility under the Convention."
"The Court acknowledges from the outset that, as the applicant submitted, the term "jurisdiction" is not limited to the national territory of the High Contracting parties; their responsibility can be involved because of acts of their authorities producing effects outside their own territory (see…Drozd…).
It observes, however, that Article 1 of the Convention must be read in the light of Article 56. The latter provision enables the States to lodge a declaration extending the Convention to territories for whose international relations they are responsible and thus to bring issues relating to such territories within the ambit of the Convention. An essential feature of the system established by Article 56 is that the Convention cannot apply to acts of the authorities of such territiories, nor to the policies implemented by the Government of the Contracting Party concerned in the exercise of their responsibilities for those territories, unless a declaration extending the ambit of the Convention has been made…
Therefore, in the absence of a declaration by Portugal under Article 56 of the Convention regarding the territory of Macao, the Court is bound to conclude that it has no jurisdiction ratione loci to examine the present application.
As regards the applicant's argument that the Governor of Macao engaged the responsibility of Portugal by authorising the extradition proceedings against the applicant to continue, the Court notes that that was merely a preparatory step since, under the extradition procedure applicable in the instant case, it was for the judicial authorities to take the final decision on the request for extradition.
The Court notes, lastly, that since 1 June 1999 the courts of Macao have had exclusive jurisdiction for the whole of the territory such that no Portuguese court will be called upon to review the decisions of those courts."
"77…it is to be observed that the Court's reasoning is framed in terms of a broad statement of principle as regards Turkey's general responsibility under the Convention for the policies and actions of the "TRNC" authorities. Having effective overall control over northern Cyprus, its responsibility cannot be confined to the acts of its own soldiers or officials in northern Cyprus but must also be engaged by virtue of the acts of the local administration which survives by virtue of Turkish military and other support. It follows that, in terms of Article 1 of the Convention, Turkey's "jurisdiction" must be considered to extend to securing the entire range of substantive rights set out in the Convention and those additional Protocols which she has ratified, and that violations of those rights are imputable to Turkey.
78. In the above connection the Court must have regard to the special character of the Convention as an instrument of European public order for the protection of individual human beings and its mission, as set out in Article 19 of the Convention "to ensure the observance of the engagements undertaken by the High Contracting Parties". Having regard to the applicant Government's continuing inability to exercise their Convention obligations in northern Cyprus, any other finding would result in a regrettable vacuum in the system of human-rights protection in the territory in question by removing from individuals there the benefit of the Convention's fundamental safeguards and their right to call a High Contracting Party to account for violations of their rights in proceedings before the Court…
80. The Court, concludes, accordingly…that the matters complained of in the instant application fall within the "jurisdiction" of Turkey within the meaning of Article 1 of the Convention and therefore entail the respondent State's responsibility under the Convention."
"39. In the above-mentioned Soering case the Court recognised that Article 3 has some, limited, extraterritorial application, to the extent that the decision by a Contracting State to expel an individual might engage the responsibility of that State under the Convention, where substantial grounds had been shown for believing that the person concelled, if expelled, faced a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the receiving country. In the judgment it was emphasised, however, that in so far as any liability under the Convention might be incurred in such circumstances, it would be incurred by the expelling Contracting State by reason of its having taken action which had as a direct consequence the exposure of an individual to proscribed ill-treatment.
40. The applicant does not contend that the alleged torture took place within the jurisdiction of the United Kingdom or that the United Kingdom authorities had any causal connection with its occurrence. In these circumstances, it cannot be said that the High Contracting Party was under a duty to provide a civil remedy to the applicant in respect of torture allegedly carried out by the Kuwaiti authorities."
"In the instant case, the applicant was arrested by members of the Turkish security forces inside an aircraft in the international zone of Nairobi Airport. Directly after he had been handed over by the Kenyan officials to the Turkish officials the applicant was under effective Turkish authority and was therefore brought within the "jurisdiction" of that State for the purposes of Art. 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory. The Court considers that the circumstances of this case are distinguishable from those in the aforementioned Bankovic case, notably in that the applicant was physically forced to return to Turkey by Turkish officials and was subject to their authority and control following his arrest and return to Turkey."
"333. The Court considers that where a Contracting State is prevented from exercising its authority over the whole of its territory by a constraining de facto situation, such as obtains when a separatist regime is set up, whether or not this is accompanied by military occupation by another State, it does not thereby cease to have jurisdiction within the meaning of Article 1 of the Convention over that part of its territory temporarily subject to a local authority sustained by rebel forces or by another State.
Nevertheless such a factual situation reduces the scope of that jurisdiction in that the undertaking given by the State under Article 1 must be considered by the Court only in the light of the Contracting State's positive obligations towards persons within its territory. The State in question must endeavour, with all the legal and diplomatic means available to it vis-à-vis foreign States and international organisations, to continue to guarantee the enjoyment of the rights and freedoms guaranteed by the Convention.
334. Although it is not for the Court to indicate which measures the authorities should take in order to comply with their obligations most effectively, it must verify that the measures actually taken were appropriate and sufficient in the present case. When faced with a partial or total failure to act, the Court's task is to determine to what extent a minimum effort was nevertheless possible and whether it should have been made. Determining that question is especially necessary in cases concerning an alleged infringement of absolute rights such as those guaranteed by Articles 2 and 3 of the Convention.
335. Consequently, the Court concludes that the applicants are within the jurisdiction of the Republic of Moldova for the purposes of Article 1 of the Convention but that its responsibility for the acts complained of, committed in the territory of the "MRT", over which it exercises no effective authority, is to be assessed in the light of its positive obligations under the Convention."
"312…From the standpoint of public international law, the words "within their jurisdiction" in Article 1 of the Convention must be understood to mean that a State's jurisdictional competence is primarily territorial (see the Bankovic decision, cited above, § 59), but also that jurisdiction is presumed to be exercised normally throughout its territory.
This presumption may be limited in exceptional circumstances, particularly where a State is prevented from exercising its authority in part of its territory. That may be as a result of military occupation which effectively controls the territory concerned (see Loizidou v. Turkey (Preliminary Objections) judgment of 25 March 1995…and Cyprus v. Turkey…as cited in the Bankovic decision, §§ 70-71), to acts of war or rebellion, or to the acts of a separatist State within the territory of the State concerned.
314. Moreover, the Court observes that, although in the Bankovic case it emphasised the preponderance of the territorial principle in the application of the Convention…it also acknowledged that the concept of "jurisdiction" within the meaning of Article 1 of the Convention is not necessarily restricted to the national territory of the High Contracting Parties (see Loizidou v. Turkey (Merits), judgment of 18 December 1996…
The Court has accepted that in exceptional circumstances the acts of Contracting States performed outside their territory or which produce effects there may amount to exercise by them of their jurisdiction within the meaning of Article 1 of the Convention.
According to the relevant principles of international law, a State's responsibility may be engaged where, as a consequence of military action – whether lawful or unlawful – it in practice exercises effective control of an area situated outside its national territory…"
"319. A State may also be held responsible even where its agents are acting ultra vires or contrary to instructions. Under the Convention a State's authorities are strictly liable for the conduct of their subordinates; they are under a duty to impose their will and cannot shelter behind their inability to ensure that it is respected…"
"392. All of the above proves that the "MRT", set up in 1991-1992 with the support of the Russian Federation, vested with organs of power and its own administration, remains under the effective authority, or at the very least under the decisive influence, of the Russian Federation, and in any event that its survives by virtue of the military, economic, financial and political support given to it by the Russian Federation…
394. In conclusion, the applicants therefore come within the "jurisdiction" of the Russian Federation for the purposes of Article 1 of the Convention and its responsibility is engaged with regard to the acts complained of."
"It is true that the court has declared both of these cases admissible and that they include certain complaints about alleged actions by Turkish agents outside Turkish territory. However, in neither of those cases was the issue of jurisdiction raised by the respondent government or addressed in the admissibility decisions and in any event the merits of those cases remain to be decided."
However, albeit only at the merits stage, Turkey raised the point, in reliance on Bankovic itself, that there –
"the Court had departed from its previous case-law on the scope of the interpretation of Article 1 of the Convention" (Issa, para 52).
"the Government cannot be considered precluded from raising the jurisdiction issue at this juncture. That issue is inextricably linked to the facts underlying the allegations. As such, it must be taken to have been implicitly reserved for the merits stage."
Since on the merits the deaths of the shepherds could not, as the Court was to go on to find, be imputed to the Turkish forces at all, it is not plain why the Court went out of its way to resolve the jurisdiction issue. That it did so suggests that it was keen to do so, possibly, but we are speculating here, because it was conscious that claims arising out of the 2003 invasion of Iraq might in due course need consideration. That it did so when it could have avoided the issue lends force, in our judgment, to Mr Singh's submission that, whether the reasoning on jurisdiction is strictly (in English law terms) obiter or not, it is deserving of the closest attention and respect.
"[Bankovic] also confirmed that the Convention was a treaty operating in an essentially regional context and in the legal space (espace juridique) of Contracting States and that jurisdiction would only be established when the territory in question was one that would normally be covered by the Convention.
57. Iraq was an independent and sovereign State which exercised effective jurisdiction over its national territory. It was neither a member of the Council of Europe nor a signatory to the Convention. Accordingly the acts imputed to Turkey could not fall under the Convention system and/or within the jurisdiction of a Contracting State."
In any event, Turkey submitted on the facts that (at para 58):
"the mere presence of Turkish armed forces for a limited time and for a limited purpose in northern Iraq was not synonymous with "jurisdiction". Turkey did not exercise effective control of any part of Iraq…"
"71. Moreover, a State may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former State's authority and control through its agents operating – whether lawfully or unlawfully – in the latter State (see, mutatis mutandis, M. v. Denmark, application no. 17392/90, Commission decision of 14 October 1992, DR73, p. 193; Illich Sanchez Ramirez v. France, application no. 28780/95, Commission decision of 24 June 1996, DR 86, p. 155; Coard et al. v. the United States, the Inter-American Commission of Human Rights decision of 29 September 1999, Report No. 109/99, case No. 10.951, §§ 37, 39, 41 and 43; and the views adopted by the Human Rights Committee on 29 July 1981 in the cases of Lopez Burgos v. Uruguay and Celiberti de Casariego v. Uruguay, nos. 52/1979 and 56/1979, at §§ 12.3 and 10.3 respectively). Accountability in such situations stems from the fact that Article 1 of the Convention cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory (ibid)."
"78. Fourthly, the court does not find it necessary to pronounce on the specific meaning to be attributed in various contexts to the allegedly similar jurisdiction provisions in the international instruments to which the applicants refer because it is not convinced by the applicants' specific submissions in these respects (see para 48, above). It notes that the American Declaration on the Rights and Duties of Man 1948 referred to in Coard v US (1999) 9 BHRC 150, contains no explicit limitation on jurisdiction. In addition, and as to art 2(1) of the ICCPR [the International Covenant on Civil and Political Rights 1966] (para 26, above), as early as 1950 the drafters had definitively and specifically confined its territorial scope and it is difficult to suggest that exceptional recognition by the Human Rights Committee of certain instances of extra-territorial jurisdiction (and the applicants give one example only) displaces in any way the territorial jurisdiction expressly conferred by that article of the ICCPR or explains the precise meaning of 'jurisdiction' in art 1 of its optional protocol (para 27, above). While the text of art 1 of the American Convention on Human Rights 1978 (para 24, above) contains a jurisdiction condition similar to art 1 of the European Convention, no relevant case law on the former provision was cited before this court by the applicants."
Although Burgos and Casariego were not mentioned in that paragraph by name, they are referred to in the passage dealing with the ICCPR where the Court said that the applicants there "give one example only". That example, Mr Greenwood is in a position to inform us, was Burgos. As will appear below, Casariego is on all fours with Burgos and was decided at the same time.
"According to the applicant, he was taken into the custody of French police officers and deprived of his liberty in a French military aeroplane. If this was indeed the case, from the time of being handed over to those officers, the applicant was effectively under the authority, and therefore the jurisdiction, of France, even if this authority was, in the circumstances, being exercised abroad…"
citing (inter alia) Cyprus v. Turkey (1975). Post-Bankovic one would tend to regard this as a decision within the exception regarding vessels and aircraft, if indeed there was any need to treat the flight and his detention on board separately from his detention in France. The Commission went on to find that his arrest had been made pursuant to a lawful arrest warrant issued before his abduction. It found that his application was manifestly ill-founded.
"In line with this, it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory."
That last sentence was effectively reproduced in Issa at the end of its para 71 (see above under para 208). However, it is not easy to see how an Human Rights Committee opinion which rejects, root and branch, a territorial approach is compatible with the Bankovic decision.
"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."
"72. In the light of the above principles the Court must ascertain whether the applicants' relatives were under the authority and/or effective control, and therefore within the jurisdiction, of the respondent State as a result of the latter's extra-territorial acts."
"74. The Court does not exclude the possibility that, as a consequence of the military action, the respondent State could be considered to have exercised, temporarily, effective overall control of a particular portion of the territory of northern Iraq. Accordingly, if there is a sufficient factual basis for holding that, at the relevant time, the victims were within that specific area, it would follow logically that they were within the jurisdiction of Turkey (and not that of Iraq, which is not a Contracting State and clearly does not fall within the legal space (espace juridique) of the Contracting States (see the above-cited Bankovic decision, § 80).
75. However, notwithstanding the large number of troops involved in the aforementioned military operations, it does not appear that Turkey exercised effective overall control of the entire area of northern Iraq. This situation is therefore in contrast to the one which obtained in northern Cyprus in the Loizidou v. Turkey and Cyprus v. Turkey cases (both cited above). In the latter cases, the Court found that the respondent Government's armed forces totalled more than 30,000 personnel (which is, admittedly, no less than the number alleged by the applicants in the instant case – see § 63 above – but with the difference that the troops in northern Cyprus were present over a much longer period of time) and were stationed throughout the whole of the territory of northern Cyprus. Moreover, that area was constantly patrolled and had check points on all the main lines of communication between the northern and southern parts of the island."
"76. The essential question to be examined in the instant case is whether at the relevant time Turkish troops conducted operations in the area where the killings took place."
"76. We derive the following principles from the decisions referred to above:
(i) The jurisdiction referred to in Art 1 of the Convention will normally be territorial jurisdiction.
(ii) Where a state enjoys effective control of foreign territory, that territory will fall within its jurisdiction for the purposes of Art 1.
(iii) Where, under principles of international law, a State enjoys extra-territorial jurisdiction over an individual and acts in the exercise of that jurisdiction, that individual will be deemed to be within the jurisdiction of the State for the purposes of Art 1, insofar as the action in question is concerned."
"8. The European Convention of Human Rights was concluded against a background of customary international law, and the obligations that it imposes on High Contracting Parties must be construed in the light of that background. Under international law, the jurisdiction exercised by a state is primarily territorial. While exceptions exist, notably in relation to ships and aircraft and diplomatic and consular premises, the primary rule is that a state is entitled to exercise jurisdiction over all persons and things within its own territory. The corollory of this rule is that each state must respect the competence of every other state to exercise jurisdiction over all persons and things within its territory. The general approach of international law is clearly set out in two passages from the leading British textbook on the subject, Oppenheim's International Law, 9th edition, 1992, edited by Jennings and Watts. The first is found at paragraph 137 of volume 1:
"Territorial jurisdiction. As all persons and things within the territory of a state fall under its territorial authority, each state normally has jurisdiction – legislative, curial and executive – over them. Territoriality is the primary basis for jurisdiction; even if another state has a concurrent basis for jurisdiction, its right to exercise it is limited if to do so would conflict with the rights of the state having territorial jurisdiction. Thus even though a state has personal jurisdiction over its nationals abroad, its ability to enforce that jurisdiction is limited so long as they remain within the territory of another state: as the Permanent Court of International Justice said in the Lotus case in 1927, 'a State may not exercise its power in any form in the territory of another State'; jurisdiction 'cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention' (PCIJ, Series A, No 10, pp 18-19)."
The second passage is found at paragraph 169 of volume 1, where the same matter is considered in the context of state territory:
"Importance of state territory. The importance of state territory is that is the space within which the state exercises its supreme, and normally exclusive, authority. State territory is an object of international law, because that law recognises the supreme authority of every state within its territory; which authority must of course be exercised in accordance with international law. Whatever person or thing, is on, or enters into, that territory, is ipso facto subjected to the supreme authority of the state: Quidquid est in territorio, est etiam de territorio and Qui in territorio meo est, etiam meus subditus est. No other state may exercise its power within the boundaries of the home territory; however, international law does, and international treaties may, restrict the territorial sovereign in the exercise of its sovereignty, and, for example, foreign sovereigns and diplomatic envoys enjoy certain privileges and immunities. The exclusive dominion of a state within its territory is basic to the international system…"
9. In the present case the petitioner claims under article 2 of the Convention that he is entitled to a public inquiry into the death of his son. Any such right obviously arises out of the death, but the death occurred on French territory. As a matter of general international law, therefore, jurisdiction over any inquiry into the circumstances of the death belongs to France…It is clear in my opinion that the word "jurisdiction" in that article must be construed in the manner in which it has been construed in international law. On that basis, the concept of jurisdiction contained in article 1 of the Convention is primarily territorial."
"On its facts, therefore, the case represents an exception to the general rule that the concept of jurisdiction in article 1 is territorial. The justification for the exception is clearly that Turkey was, with the consent of Kenya, exercising effective control within the latter's territory."
"However complete the control exercised by the Convention State over the dependent territory, the Convention applies to the territory only if there has been a notification under Article 56 and, in the case of the Protocol, only if there has been notification under its Article 4. This principle is well established in the jurisprudence of the ECHR in Bui van Than v UK…and Yongkong v Portugal…Thus control over the territory is insufficient; the declaration extending the ambit of the Convention (or the Protocol) must have been made…Resort to the expression espace juridique throws no light on the issue in my view and Bankovic is a reaffirmation of the territorial principle, subject to exceptions (Bankovic paragraph 70) which do not apply in the present case."
"7…Thus the primary focus of the European Convention is territorial: member states are bound to respect the Convention rights of those within their borders. In the ordinary way, a claim based on the Convention arises where a state is said to have acted within its own territory in a way which infringes the enjoyment of a Convention right by a person within that territory. Such claims may for convenience be called "domestic cases"."
"8… The Commission had held (para 59) that "immigration controls had to be exercised consistently with Convention obligations, and the exclusion of a person from a state where members of his family were living might raise an issue under article 8". As this quotation makes plain, however, this was a domestic case: the applicants were wives settled here; they complained that their husbands had been refused leave to enter or remain; they alleged an interference with their family life here.
9. Domestic cases as I have defined them are to be distinguished from cases in which it is not claimed that the state complained of has violated or will violate the applicant's Convention rights within its own territory but in which it is claimed that the conduct of the state in removing a person from its territory (whether by expulsion or extradition) to another territory will lead to a violation of the person's Convention rights in that other territory. I call these "foreign cases", acknowledging that the description is imperfect, since even a foreign case assumes an exercise of power by the state affecting a person physically present within its territory. It is a question of obvious relevance to these appeals, since the appellants do not complain of any actual or apprehended interference with their article 9 rights in the United Kingdom.
10. A clear, although partial, answer to this question was given in Soering v United Kingdom…"
"Drozd…was not, within my definition, a foreign case. It involved no removal. The applicants complained of the fairness of their trial in Andorra (which the court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5. The case is important, first, for the ruling (in para 110 of the court's judgment) that member states are obliged to refuse their co-operation with another state if it emerges that a conviction "is the result of a flagrant denial of justice". Secondly, the case is notable for the concurring opinion of Judge Matscher, who said, at p 795:
"According to the court's case law, certain provisions of the Convention do have what one might call an indirect effect, even where they are not directly applicable. Thus, for example, a state may violate articles 3 and/or 6 of the Convention by ordering a person to be extradited or deported to a country, whether or not a member state of the Convention, where he runs a real risk of suffering treatment contrary to the provisions of the Convention…"
"There is much in the legal analysis of the Court of Appeal which is uncontroversial. The Court of Appeal emphasised the principle of territoriality expressed in article 1 of the ECHR: p 785, para 47. The notion of jurisdiction is essentially territorial. However, the European Court has accepted that in exceptional cases acts of contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of article 1 of the ECHR: Öcalan v Turkey (2003) 37 EHRR 238, 274-275, para 93; Bankovic v Belgium 11 BHRC 435. The effect of the decision of the European Court in Soering v United Kingdom 11 EHRR 439 was that the extraditing or deporting state is itself liable for taking actions the direct consequence of which is the exposure of an individual abroad to the real risk of proscribed treatment. The Court of Appeal rightly stated that Soering is an exception to the essentially territorial foundation of jurisdiction. It is important, however, to bear in mind that apart from specific bases of jurisdiction such as the flag of a ship on the high seas or consular premises abroad, there are exceptions of wider reach which can come into play. Thus contracting states are bound to secure the rights and freedoms under the ECHR to all persons under their actual authority and responsibility, whether that authority is exercised within their own territory or abroad: Cyprus v Turkey (1976) 4 EHRR 482, 586, para 8."
"I am myself satisfied that a fair reading of the Strasbourg cases requires a national court to accept that these articles [2, 4, 5, 7 and 8] could possibly be engaged and that the exception to the territoriality principle is not confined to article 3."
Jurisprudence of other nations
Conclusions derived from this jurisprudence
"20. In determining the present question, the House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court: R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  2 AC 295, para 26. This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this is follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of the national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."
"In short, the convention is a multi-lateral treaty operating…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."
The principles as applied to the facts.
Jurisdiction under the Human Rights Act 1998
"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
"Unless the contrary intention appears, Parliament is taken to intend an Act to extend to each territory of the United Kingdom but not to any territory outside the United Kingdom" (at section 106, p 282); and
"Unless the contrary intention appears…an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons and matters" (at section 128, p 306).
"An Act of the Imperial Parliament today, unless it provides otherwise, applies to the whole of the United Kingdom and to nothing outside the United Kingdom: not even to the Channel Islands or the Isle of Man, let alone to a remote overseas colony or possession";
and to Tomalin v. S Pearson & Son Ltd  2 KB 61 at 64 where Cozens-Hardy MR said:
"In the absence of an intention clearly expressed or to be inferred from its language, or from the object or subject-matter or history of the enactment, the presumption is that Parliament does not design its statutes to operate on its subjects beyond the territorial limits of the United Kingdom."
"The Bill gives effect to Article 1 by securing to people in the United Kingdom the rights and freedoms of the convention".
And on a later occasion Lord Irvine also said (ibid, 29.11.98, col 421):
"The words in the Bill are "An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights." But I have not conceded that this Bill claims any extra territorial effect. I do not believe that it is a great flight of the imagination to read it as meaning in the United Kingdom. I have to make this point absolutely plain. The European Convention on Human Rights under this Bill is not made part of our law. The Bill gives the European Convention on Human Rights a special relationship which will mean that the Courts will give effect to the interpretative provisions to which I have already referred, but it does not make the convention directly justiciable as it would be if it were expressly made part of our law. I want there to be no ambiguity about that."
"the 1998 Act extends, with limited exception, only to the territory of the United Kingdom. The usual presumption as to the territorial scope of an Act of Parliament applies."
The Queen on the Application of "B"& Ors v. Secretary of State for the Foreign and Commonwealth Office ("B")  EWCA Civ 1344 (unreported, 18 October 2004).
"i) Could the actions of the United Kingdom diplomatic and consular officials in Melbourne fall 'within the jurisdiction' of the United Kingdom within the meaning of that phrase in Article 1 of the Convention?
ii) Could the Human Rights Act apply to the actions of the United Kingdom diplomatic and consular officials in Melbourne?
iii) Did the actions of the United Kingdom diplomatic and consular officials in Melbourne infringe a) the Convention and b) the Human Rights Act?"
The answers given by the court of appeal to these questions were as follows: (i) Yes, but only as a matter of assumption rather than decision (at para 66); (ii) Yes, on the basis that jurisdiction under the Act paralleled that under the Convention (at para 79); and (iii) No, because the grant of diplomatic asylum would have infringed the obligations of the United Kingdom under public international law (at para 96). The application therefore failed.
"51. In Bankovic…[t]he EctHR equated the jurisdiction referred to in Article 1 with the jurisdiction enjoyed by a State under principles of public international law. It observed that this jurisdiction is primarily territorial. This conclusion is hardly surprising. Article 1 requires contracting States to secure to everyone within their jurisdiction the Convention rights and freedoms. For the most part this is an obligation that can only be performed by the State which has jurisdiction over the territory in which those rights and freedoms are enjoyed…
55. The Court in Bankovic recognised none the less that there were circumstances where the jurisdiction referred to in Article 1 was not territorial in nature. Such jurisdiction still fell to be identified according to principles of public international law…The jurisdiction recognised under public international law in relation to activities on board vessels bears a close comparison with territorial jurisdiction – see Oppenheim's International Law edited by the late Sir Robert Jennings QC and Sir Arthur Watts QC 9th Edition Vol 1 paragraph 287 and following…
56. …The obvious example of the exercise of jurisdiction on those outside a State's territory is the right recognised by International Law for a State to enact legislation affecting its citizens. Oppenheim describes the position as follows at paragraph 138:
"International law does not prevent a state from exercising jurisdiction, within its own territory, over its nationals travelling or residing abroad, since they remain under its personal authority…"
57. Drodz was a case where the Commission appears to have accepted that, had the judges seconded from France and Spain been lawfully exercising in Andorra the judicial authority of their respective States, jurisdiction would have existed for the purpose of Article 1."
"precludes the application of any presumption that the Human Rights Act applies within the territorial jurisdiction of the United Kingdom, rather than the somewhat wider jurisdiction of the United Kingdom that the Strasbourg Court has held to govern the duties of the United Kingdom under the Convention" (at para 78)
we have expressed essentially the same conclusion in the terms of paragraph 306 above. This marginal difference in formula makes no difference in this case.
Procedural requirements of articles 2 and 3 of the Convention
Right to Life
1. Everyone's right to life shall be protected by law. No one shall be deprived of his life save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection."
Prohibition of Torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
"…The cases clearly establish a number of important propositions:
(1) It is established by McCann, para 161, Yasa v Turkey (1998) 28 EHRR 408, para 98, Salman, para 104 and Jordan, para 105 that (as it was put in McCann):
"The obligation to protect the right to life [under article 2(1)], read in conjunction with the State's general duty under article 1 of the Convention to 'secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention', requires that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the state."
(2) Where agents of the state have used lethal force against an individual the facts relating to the killing and its motivation are likely to be largely, if not wholly, within the knowledge of the state, and it is essential both for the relatives and for public confidence in the administration of justice and in the state's adherence to the principles of the rule of law that a killing by the state be subject to some form of open and objective oversight: para 192 of the opinion of the Commission in McCann, set out at pp139-140.
(3) As it was put in Salman, para 99:
"Persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused [footnote omitted]. The obligation on the authorities to account for the treatment of an individual in custody is particularly stringent where that individual dies."
Where the facts are largely or wholly within the knowledge of the state authorities there is an onus on the state to provide a satisfactory and convincing explanation of how the death or injury occurred: Salman, para 100; Jordan, para 103.
(4) The objective to ensure that there is some form of effective offical investigation when individuals have been killed as a result of the use of force is not confined to cases where it is apparent that the killing was caused by an agent of the state: Salman, para 105.
(5) The essential purpose of the investigation was defined by the Court in Jordan, para 105:
"to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures."
(6) The investigation must be effective in the sense that (Jordan, para 107)
"it is capable of leading to a determination of whether the force used in such circumstances was or was not justified in the circumstances…and to the identification and punishment of those responsible…This is not an obligation of result, but of means."
(7) For an investigation into alleged unlawful killing by state agents to be effective, it may generally be regarded as necessary (Jordan, para 106)
"for the persons responsible for and carrying out the investigation to be independent from those implicated in the events…This means not only a lack of hierarchical or institutional connection but also a practical independence."
(8) While public scrutiny of police investigations cannot be regarded as an automatic requirement under article 2 (Jordan, para 121), there must (Jordan, para 109) "be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case."
(9) "In all cases", as the Court stipulated in Jordan, para 109: "the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests."
(10) The Court has not required that any particular procedure be adopted to examine the circumstances of a killing by state agents, nor is it necessary that there be a single unified procedure: Jordan, para 143. But it is "indispensible" (Jordan, para 144) that there be proper procedures for ensuring the accountability of agents of the state so as to maintain public confidence and allay the legitimate concerns that arise from the use of lethal force."
"It is mindful, as indicated in various previous judgments concerning Turkey, of the fact that loss of life is a tragic and frequent occurrence in the security situation in south-east Turkey…However, neither the prevalence of violent armed clashes nor the high incidence of fatalities can displace the obligation under Article 2 to ensure that an effective, independent investigation is conducted into the deaths arising out of the clashes involving the security forces, the more so in cases such as the present where the circumstances are in many respects unclear."
The procedural obligation as applied on the facts