IPT/15/172/CH, IPT/15/173/CH, IPT/15/174/CH,
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE MITTING (VICE PRESIDENT)
ROBERT SEABROOK QC
SUSAN O'BRIEN QC
CHRISTOPHER GARDNER QC
| HUMAN RIGHTS WATCH INC & ORS
|- and -
|THE SECRETARY OF STATE FOR THE FOREIGN & COMMONWEALTH OFFICE & ORS
James Eadie QC and Kate Grange (instructed by Government Legal Department) for the Respondents
Hearing date: 15 April 2016
Crown Copyright ©
Mr Justice Burton:
"Whether in fact there has been, prior to 18 November 2014, soliciting, receiving, storing and transmitting by UK authorities of private communications of the Claimants which have been obtained by the US authorities pursuant to Prism and/or Upstream in contravention of Article 8 and/or 10 ECHR as declared to be unlawful by the Tribunal's order of 6 February 2015.
Whether in fact the Claimants' communications have been intercepted pursuant to s.8(1) or s.8(4) of RIPA, and intercepted, viewed, stored or transmitted so as to amount to unlawful conduct and/or in contravention of and, not justified by, Articles 8 and/or 10 ECHR."
"We are satisfied however that the product was not accessed after the expiry of the relevant retention time limit, and the breach can thus be characterised as technical, though (as recognised by the Tribunal in the Belhadj Judgment) requiring a determination to be made. Though technical, the breach constitutes both "conduct" about which complaint may properly be made under section 65 of RIPA and a breach of Article 8 ECHR… The Tribunal is satisfied that Amnesty… has not suffered material detriment, damage or prejudice as a result of the breach, and that the foregoing Open Determination constitutes just satisfaction, so there will be no award of compensation."
"Did GCHQ Illegally Spy on You?
Have you ever made a phone call, sent an email, or, you know, used the internet? Of course you have!
Chances are, at some point, your communications were swept up by the U.S National Security Agency's mass surveillance program and passed on to Britain's intelligence agency GCHQ.
Because of our recent victory against GCHQ in court, now anyone in the world – yes, ANYONE, including you – can try to find out if GCHQ illegally had access to information about you from the NSA.
Make your claim using one of the options below, and send it to the Investigatory Powers Tribunal (IPT) to try and find out if GCHQ illegally spied on you.
Privacy International is not representing you in your claim before the IPT. You are responsible for filing your claim and following up with any requests for additional information or action that you may receive from the IPT.
To start your claim, please click on the link below that applies to you."
1) "[…] is a resident of […]
2) I believe that the Respondents have and/or continue to intercept, solicit, access, obtain, process, use, store and/or retain my information and/or communications. I also believe that that my information and/or communications are accessible to the Respondents as part of datasets maintained, in part, or wholly, by other governments' intelligence agencies.
3) In so doing, the UK Government has breached Article 8 and 10 of the European Convention on Human Rights (ECHR), as incorporated into UK law by the Human Rights Act 1998 (HRA).
4) This Tribunal has already concluded that, to the extent my information was shared with the UK Government Communications Headquarters (GCHQ) by the US National Security Agency (NSA) prior to 5 December 2014, such action was unlawful and a violation of Article 8 of the ECHR [Liberty/Privacy No 2].
5) If my information was so shared, I request a determination pursuant to Section 68(4) of the Regulation of Investigatory Powers Act 2000 (RIPA) that such unlawful sharing occurred, with a summary of that determination including any findings of fact: Belhadj & Ors  UKIPTrib 13_132-H.
6) I also believe that the Respondents may have unlawfully intercepted, solicited, accessed, obtained, processed, used, stored and/or retained my information and/or communications, whatever the source of that information or communications may be. It appears that the Respondents have, in many cases, failed to follow their own internal procedures.
7) To the extent the Respondents failed to follow their internal policies or procedures governing the interception, access, obtaining, processing, storage or retention of my information and/or communications, such failure is unlawful and violates Articles 8 and 10 of the ECHR [the Open Determination].
8) These grounds accompany the forms T1 and T2 filed by me. They set out, in summary, the Grounds relied upon.
9) I seek the following relief:
a) A declaration that the UK's intercepting, soliciting, accessing, obtaining, processing, using, storing and/or retaining my information and/or communications is unlawful and contrary to Article 8 and 10 of the ECHR, and RIPA;
b) An order requiring destruction of any unlawfully obtained material;
c) An injunction restraining further unlawful conduct; and
d) Any further relief the Tribunal deems appropriate."
The victim issue
"166 Following the Klass and Others case, the case-law of the Convention organs developed two parallel approaches to victim status in secret surveillance cases.
167 In several cases the Commission and the Court held that the test in Klass and Others could not be interpreted so broadly as to encompass every person in the respondent State who feared that the security services might have compiled information about him or her. An applicant could not, however, be reasonably expected to prove that information concerning his or her private life had been compiled and retained. It was sufficient, in the area of secret measures, that the existence of practices permitting secret surveillance be established and that there was a reasonable likelihood that the security services had compiled and retained information concerning his or her private life... In all of the above cases the applicants alleged actual interception of their communications. In some of them they also made general complaints about legislation and practice permitting secret surveillance measures…
168 In other cases the Court reiterated the Klass and Others approach that the mere existence of laws and practices which permitted and established a system for effecting secret surveillance of communications entailed a threat of surveillance for all those to whom the legislation might be applied. This threat necessarily affected freedom of communication between users of the telecommunications services and thereby amounted in itself to an interference with the exercise of the applicants' rights under Article 8, irrespective of any measures actually taken against them… In all of the above cases the applicants made general complaints about legislation and practice permitting secret surveillance measures. In some of them they also alleged actual interception of their communications…
169 Finally, in its most recent case on the subject, Kennedy v. UK, the Court held that sight should not be lost of the special reasons justifying the Court's departure, in cases concerning secret measures, from its general approach which denies individuals the right to challenge a law in abstracto. The principal reason was to ensure that the secrecy of such measures did not result in the measures being effectively unchallengeable and outside the supervision of the national judicial authorities and the Court. In order to assess, in a particular case, whether an individual can claim an interference as a result of the mere existence of legislation permitting secret surveillance measures, the Court must have regard to the availability of any remedies at the national level and the risk of secret surveillance measures being applied to him or her. Where there is no possibility of challenging the alleged application of secret surveillance measures at domestic level, widespread suspicion and concern among the general public that secret surveillance powers are being abused cannot be said to be unjustified. In such cases, even where the actual risk of surveillance is low, there is a greater need for scrutiny by this Court (see Kennedy v UK… at para 124)."
It was in Kennedy that the ECtHR approved the role of this Tribunal.
"170. The Court considers, against this background, that it is necessary to clarify the conditions under which an applicant can claim to be the victim of a violation of Article 8 without having to prove that secret surveillance measures had in fact been applied to him, so that a uniform and foreseeable approach may be adopted.
171. In the Court's view the Kennedy approach is best tailored to the need to ensure that the secrecy of surveillance measures does not result in the measures being effectively unchallengeable and outside the supervision of the national judicial authorities and of the Court. Accordingly, the Court accepts that an applicant can claim to be the victim of a violation occasioned by the mere existence of secret surveillance measures, or legislation permitting secret surveillance measures, if the following conditions are satisfied. Firstly, the Court will take into account the scope of the legislation permitting secret surveillance measures by examining whether the applicant can possibly be affected by it, either because he or she belongs to a group of persons targeted by the contested legislation or because the legislation directly affects all users of communication services by instituting a system where any person can have his or her communications intercepted. Secondly, the Court will take into account the availability of remedies at the national level and will adjust the degree of scrutiny depending on the effectiveness of such remedies. As the Court underlined in Kennedy, where the domestic system does not afford an effective remedy to the person who suspects that he or she was subjected to secret surveillance, widespread suspicion and concern among the general public that secret surveillance powers are being abused cannot be said to be unjustified (see Kennedy… para 124). In such circumstances the menace of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8. There is therefore a greater need for scrutiny by the Court and an exception to the rule, which denies individuals the right to challenge a law in abstracto, is justified. In such cases the individual does not need to demonstrate the existence of any risk that secret surveillance measures were applied to him. By contrast, if the national system provides for effective remedies, a widespread suspicion of abuse is more difficult to justify. In such cases, the individual may claim to be a victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures only if he is able to show that, due to his personal situation, he is potentially at risk of being subjected to such measures.
172. The Kennedy approach therefore provides the Court with the requisite degree of flexibility to deal with a variety of situations which might arise in the context of secret surveillance, taking into account the particularities of the legal systems in the member States, namely the available remedies, as well as the different personal situations of applicants."
In paragraph 288 the Court makes a further reference to Kennedy v UK and its compatibility with the Convention because "in the United Kingdom any person who suspected that its communications were being or had been intercepted could apply to the Investigatory Powers Tribunal."
"The Tribunal is the appropriate forum for any complaint if it is a complaint by a person who is aggrieved by any conduct…which he believes –
a) to have taken place in relation to him, to any of his property, to any communications sent by or to him, or intended for him, or to his use of any postal service, telecommunication service or telecommunications system; and
b)… to have been carried out by or on behalf of any of the intelligence services."
"(4) The Tribunal shall not be under any duty to hear, consider or determine any proceedings, complaint or reference if it appears to them that the bringing of the proceedings, or the making of the complaint or references are frivolous or vexatious."
The second, s.69(5), relates to a one year time bar, with a discretion to extend.
"9. Consequently the Applicants would have to be in a position to satisfy the Tribunal that they belong to a group of persons who may be said to be possibly affected by the Intelligence Sharing Regime. In particular:
a. The Prism and Upstream programmes permit the interception and acquisition of communications to, from or about specific tasked selectors associated with non-US persons who are reasonably believed to be outside the US. i.e. they concern unanalysed intercepted communications (and associated communications data) relating to particular individuals outside the US, not broad data mining.
b. As stated in the Disclosure which was provided in the Liberty/Privacy proceedings, the Intelligence Services have only ever made a request for such unanalysed intercepted communications (and associated communications data) where a RIPA warrant is already in place for that material, but the material cannot be collected under the warrant. Any request made in the absence if a warrant would be exceptional, and would be decided upon by the Secretary of State personally: see the Interception Code at para 12.3.
10. As the Tribunal will be well aware, the conditions for intercepting communications pursuant to a RIPA warrant are as set out in s.5(3) RIPA. They are the interests of national security; the prevention or detection of serious crime; or the safeguarding of the UK's economic well-being, in circumstances appearing relevant to the interests of national security. Those conditions substantially mirror, and are no narrower than, the statutory functions of the Intelligence Services under the SSA and ISA. If the victim hurdle is to be satisfied, the Claimants will need to advance a credible case that their data could be collected and shared under any of the conditions in s.5(3) RIPA, the SSA or ISA. Certainly the assertion that individuals have been involved in campaigning activities concerning e.g. freedom of expression would be inadequate to meet that test. Such activities would not give any grounds for the issue of a warrant for interception of the Applicants' communications under s.5(3) RIPA. Nor, by the same token, would they give grounds for intelligence sharing without a warrant in pursuance of the Intelligence Services' statutory functions.
11. In those circumstances the Tribunal's determinations and declarations in the Liberty/Privacy proceedings provide the appropriate remedy in relation to the Intelligence Sharing Regime and unless the Claimants are able to establish that they have victim status none of them are entitled to individual case-specific examination."
"15. It is clear from the standard template Statement of Grounds which is being used by all of the new complainants that the legal issues are identical to those which were considered in Liberty/Privacy, namely the legality of the intelligence sharing regime and the legality of the interception regime. Indeed, as expressly noted at §4 of the Grounds, the Tribunal has already given a declaration on the historic lawfulness of the intelligence sharing regime in [Liberty/Privacy No 2]. Consequently there are no new legal issues which these standard-form complaints seek to have determined.
16. For the avoidance of doubt, it is the Respondents' position that the Grounds are to be read as confined to the legal issues as determined in Liberty/Privacy. Although paragraph 6 of the standard template (and possibly the first sentence of paragraph 2) suggest that the Tribunal is being invited to consider every potential source of information about the Claimants, from whatever source, including whether there has been compliance with "internal procedures" in some unspecified way, those parts of the Grounds are so broad-ranging and ill-defined that they cannot properly serve to widen the complaints beyond the scope of the legal issues which were considered in Liberty/Privacy.
20. It is submitted that three matters are central to the proportionate remedial response to the Privacy campaign:
a. The Tribunal has already scrutinised the legality of the regime in detail in the Liberty/Privacy proceedings. It has made findings about the lawfulness of the regimes and, in respect of the intelligence sharing regime, the past forseeability deficiency. That deficiency was corrected by the further disclosures which were put into the public domain during those proceedings.
b. In… [Liberty/Privacy No 3] the Tribunal examined what had occurred in respect of each of the individual Claimants and it made determinations in favour of the Third and Sixth Claimants. However the breaches which had occurred were technical in the sense that, in relation to the Third Claimant, the information was not accessed after the expiry of the relevant retention time limit (§14) and, in relation to the Sixth Claimant, no use whatever was made of any intercepted material, nor any record retained (despite the procedure for selection having been in error in that case) and therefore no material detriment, damage or prejudice occurred. Importantly, the Tribunal indicated in [Liberty/Privacy No 3] that steps should be taken to ensure that neither of the breaches of procedure occurs again and the Tribunal indicated it would be making a CLOSED report to the Prime Minister pursuant to s.68(5) of RIPA. Thus the Tribunal has itself taken steps to ensure that such breaches do not occur again.
c. The Tribunal has also approved and emphasised the importance of the oversight arrangements which are in place and which are there to ensure compliance with, inter alia, the Agencies internal policies/procedures. In Liberty/Privacy the Tribunal highlighted the importance of both the ISC and the Commissioner in this regard [see §§91-92 and 121 of [Liberty/Privacy No 1]. The Commissioner in particular with his "fully implemented powers of oversight and supervision" (§92) has demonstrated the "scope and depth of his oversight duties and activities" (§92) and is there to keep under review the compliance by the Agencies with the legal framework, including their internal policies and procedures. The Commissioner will of course be aware of the judgments in Liberty/Privacy and can therefore be expected to focus on making sure that the technical breaches which occurred in individual instances in that case are not repeated.
21. Consequently there has already been detailed scrutiny of the relevant regimes by this Tribunal and compliance with the adequate internal arrangements is a matter which the Commissioner is well placed to scrutinise and oversee. There would be no material remedial deficit were the Tribunal in the copycat cases simply to rely upon its earlier judgments rather than requiring individual case examination by the Agencies. The Tribunal can properly conclude that such a course of action is disproportionate and unnecessary given the extent of work which would be required to conduct such an examination."
"10. The purpose of the claims made as part of the Privacy International Campaign is to enable individuals to ensure that bulk surveillance (whether through intercept or receipt from a foreign agency) carried out against them is carried out lawfully, and discover if their private and personal information has been unlawfully obtained. The claimants have no entitlement to know about lawful surveillance. But an essential feature of any democratic society is that covert breaches of the law by the State are disclosed to the victim."
"Where the Tribunal determine any proceedings, complaint or reference brought before or made to them, they shall give notice to the complainant which (subject to any rules made by virtue of section 69(2)(i)) shall be confined, as the case may be, to either-
(a) a statement that they have made a determination in his favour; or
(b) a statement that no determination has been made in his favour.
"31. This campaign is a very deliberate attempt on the part of individuals to find out whether the intelligence agencies hold information on them. In circumstances where the legality of the relevant regimes has already been addressed, that can be the only purpose of the complaints, as is wholly borne out by the statements made in the public campaign which has generated these complaints.
32. The Respondents have, in the past, expressed considerable concern about the prospect of the Tribunal's remedial discretion being used in such a way that would permit individuals (including current investigative targets) to discover whether they have been the subject of interception (as noted in the Belhadj IPT proceedings – see judgment dated 29 April 2015). For example, interception is one of the most sensitive and important forms of intelligence gathering and one which cannot work if the subject of the interception is aware that his communications are being intercepted and examined: see e.g. Weber… at §93 and §135. Revelation of such information could cause targets of interest to change their behaviour, with the obvious impact this could have on continued intelligence gathering. In addition it is to be noted that these complaints seek to discover whether intelligence information may have been shared with GCHQ by the NSA prior to the Tribunal's December 2014 judgment. So not only does this affect the ability of domestic intelligence agencies to keep such information secret, but it also could potentially compromise the NSA and its intelligence gathering activities, with a consequent impact on the intelligence relationship between the UK and the US.
33. Those concerns have come into ever sharper focus as a result of this large-scale, direct and deliberate attempt to find out what information is held by the intelligence agencies.
34. The Tribunal has recognised that circumstances may arise in which it is appropriate to put considerations of public safety and security before rights of individuals to specific determinations on their complaints. In Belhadj the Tribunal left open the possibility that exceptional circumstances might arise where, either by reference to discretionary Administrative Court principles (pursuant to s. 67(2) of RIPA 2000) or otherwise, it may be appropriate to preserve NCND when approaching the Tribunal's remedial discretion (see §18 of the judgment dated 29 April 2015). The Tribunal did so even in relation to individual cases in which a breach of the ECHR had been found. That discretionary Administrative Court principles, which this Tribunal is obliged to apply pursuant to section 67(2) of RIPA, can lead to a pragmatic approach, is well recognised in the case law – see for example R (Tu) v Secretary of State for the Home Department  Imm AR 288 at §24. In addition it is well established that strong public policy reasons can lead to denial of a remedy, even where unlawfulness has been shown – see, for example, R v Attorney General ex parte Imperial Chemical Industries  1 CMLR 72 at §112, R v General Medical Council ex parte Toth  1 WLR 2209 at §6 and R (C) v Secretary of State for Justice  QB 657 at §41.
35. It is accordingly and unsurprisingly proper and appropriate for public security considerations to impact on the exercise of the Tribunal's remedial discretion. Such considerations are squarely and obviously in play in circumstances in which there is an orchestrated campaign the central purpose of which appears to be to enable individuals to discover whether information about them might be held by the Agencies."
"31. The Respondents suggest that the generic foreseeability declaration is appropriate even if the Tribunal finds that a particular claimant has been a victim of unlawful conduct. They argue that, where the Tribunal concludes that a public body had acted unlawfully, it would be able to withhold not only the details or reasons for its decision, but the very fact a positive determination had been made. This cannot be correct.
32. First, the Tribunal has already determined this exact issue in Belhadj. It rightly held that claimants had to be told when a decision was made in their favour and endorsed (§ 19) the fact that such notification is:
a. Mandatory under s. 68(4) of RIPA 2000;
b. Necessary for the purposes of compensation under the regime;
c. Required for compatibility with Articles 6 and 8 of the Convention. In Kennedy v UK at § 189, the ECtHR held that a successful claimant is entitled to information on the findings of fact made in his or her case;
d. Required for public confidence in the Tribunal. In the Tribunal's words [in Belhadj] it has been:
'entrusted with the task of investigating complaints, to a large extent in closed proceeding… It would, in the Tribunal's judgment, undermine public confidence that Parliament had created a means of holding the relevant public agencies to account, if the Tribunal's findings of unlawful conduct by the Intelligence Agencies could be concealed…" (§ 19).
33. The Respondents nonetheless argue that the Tribunal should exercise its discretion to avoid giving a successful claimant notification of his or her decision. They rely on one obiter passage in the Belhadj judgment ("There may perhaps be exceptional circumstances (not relevant in the present case) in which particular facts may drive the Tribunal to a different conclusion, whether by reference to discretionary Administrative Court principles pursuant to s.67(2) or otherwise…" (§ 18)).
34. The Tribunal made it clear that this "cannot possibly be the ordinary case" (§ 18) and that the circumstances of the Belhadj case did not amount to the hypothetical 'exceptional circumstances'. Further:
a. The Tribunal in Belhadj (§ 18) explicitly rejected any distinction between 'substantial breaches' and other breaches for notification purposes:
i. there is no such requirement in the statutory regime;
ii. the RIPA regime only provides the Tribunal with a binary choice between a determination in favour of the Claimant or not;
iii. Hansard indicates that the Minister explicitly rejected this distinction when the legislation was passed and plainly stated that "We have no intention of limiting the determination when a tribunal makes a finding, however technical, in a complainant's favour".
b. The alleged breaches in the present dispute may in fact be substantial, and not 'technical' as the Respondents submit, which would only strengthen the justification for consideration of the individual circumstances of each case."
"13.… What is suggested is that a group of lead claims should go first to identify the type of breaches which might have occurred, followed by a "streamlined approach to dealing with the remainder". But that is precisely what has already occurred. The Tribunal in the Liberty/Privacy proceedings has already considered the circumstances of 10 human rights/privacy campaigning organisations. It has pronounced on the legality of the Regimes and made case-specific findings in all cases, including in two cases where technical breaches had occurred. That enabled the IPT to highlight areas of concern in respect of which steps were necessary to ensure that such breaches never occur again. The Prime Minister and the Commissioner were accordingly made aware of the situation.
14. It is also to be noted that this part of the Claimants' case must necessarily proceed on the basis that persons making a complaint to the IPT are not simply entitled without more to have their individual circumstances examined and determined. The question on that basis is thus where, not whether, to draw and proportionate and pragmatic line before declining to consider individual cases."
"17… the Claimants' submissions fail to recognise the importance of the fact that these claims have been brought as part of a deliberate campaign with the principle purpose of discovering whether GCHQ held information about individuals/organisations. Such a campaign very obviously has resource implications both for the Agencies and for the IPT itself. In that regard, whilst the claims may or may not qualify for dismissal solely on the grounds that they are frivolous or vexatious (see s.67(4) of RIPA 2000), it is nevertheless highly relevant that the campaign has some features of vexatiousness which should feed into the overall analysis as to how the claims are dealt with and particularly as regards the exercise of the Tribunal's remedial discretion.
18. Thus the fact that the claims impose a heavy burden on the Agencies and the IPT, coupled with the fact that the motivation for these complaints appears to be to go behind the important and well-established NCND principle (see §§31-35 of the Respondents' Preliminary Submissions), are relevant considerations which suggest a degree of vexatiousness and which are highly relevant to how the broad discretion of the Tribunal should be exercised in these cases. As made clear in Dransfield v Information Commissioner and Devon County Council  EWCA Civ 454 at §§67-69 per Arden LJ, both the burden imposed on a public authority and the motive of the claimant are relevant considerations when assessing whether vexatiousness can be inferred. The fact that less than 3% of the Claimants have included any additional information, over and above submission of the standard template (prepared by Privacy International) supports the assessment that the motivation for these claims is to impose a considerable and disproportionate burden on the Agencies."
The jurisdiction issue
"The high contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this convention."
Mr Eadie submits that neither Claimant is or was at any material time within the jurisdiction of the United Kingdom, and such is not in issue. In consequence, the UK owed no obligation to them to secure Article 8 or 10 rights in relation to their "information" or "communications".
"Everyone has the right to respect for his private and family life, his home and his correspondence."
Mr Jaffey submits that the acts claimed would amount to an infringement of the right to respect for private life and/or correspondence.
"…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".
"i. A State's jurisdictional competence under Article 1 is primarily territorial;
ii. Only exceptional circumstances give rise to exercise of jurisdiction by a State outside its own territorial boundaries;
iii. Whether there is an exercise of jurisdiction is a question of fact;
iv. There are two principal exceptions to territoriality: circumstances of "State agent authority and control" and "effective control over an area";
v. The "State agent authority and control" exception applies to the acts of diplomatic and consular agents present on foreign territory; to circumstances where a Contracting State, through custom, treaty or agreement, exercises executive public powers or carries out judicial or executive functions on the territory of another State; and circumstances where the State through its agents exercises control and authority over an individual outside its territory, such as using force to take a person into custody or exerting full physical control over a person through apprehension or detention.
vi. The "effective control over an area" exception applies where through military action, lawful or unlawful, the State exerts effective control of an area outside its national territory.
vii. In the exceptional circumstances of the cases before the Grand Chamber, where the United Kingdom had assumed authority and responsibility for the maintenance of security in South East Iraq, the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, had exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention."
"In the present case it is not disputed that the act about which the applicant complained, the detention of the aircraft leased by it for a period of time, was implemented by the authorities of the respondent state on its territory following a decision to impound of the Irish Minister for Transport. In such circumstances the applicant company, as the addressee of the impugned act, fell within the "jurisdiction" of the Irish state…"
In Markovic, the claimants were relatives of people killed on 23 April 1999 when the RTS building in Belgrade was struck by a missile launched from a NATO aircraft. They claimed damages in the Rome District Court. On 8 February 2002 the Court of Cassation ruled that the Italian Courts had no jurisdiction to hear the claim. The applicants contended that their rights under Article 6 ECHR had been infringed. In answer to a preliminary question raised by the ECtHR of the parties, the Italian Government conceded that the applicants had brought themselves within the ambit of the State's jurisdiction by lodging a claim: paragraph 38 of the Judgment. In the light of that concession, it is unsurprising that the Court held that if civil proceedings are brought in domestic courts, the state is required by Article 1 ECHR to secure in those proceedings respect for the right protected by Article 6, so that "there indisputably exists…a "jurisdictional link"" for the purposes of Article 1: paragraphs 54 and 55 of the Judgment.
The Tribunal's conclusions