Vol. 1, No. 19 (November 1, 2008)

European convention on human rights and the jurisdiction of the European Court of Human Rights

Timothy Otty, Q.C., Barrister, 20 Essex Street Chambers, London
Ben Olbourne, Barrister, 20 Essex Street Chambers, London

The European Court of Human Rights (“the Court”) has jurisdiction under the European Convention of Human Rights (“the Convention”) in two types of cases: claims brought by one Contracting State against another (“inter-State cases”), and claims brought against a Contracting State by an individual or group (“individual applications”).
Inter-State cases have been relatively rare: there have been less than 25 claims since the Court was established in 1959 and only two have resulted in final judgments by the Court.  They generally fall within three categories: first, where the applicant State represents or is closely connected with a group of persons whose rights are being infringed either in the territory of another State or within its own territory but by another State (examples include applications by Ireland against the United Kingdom in respect of the treatment of prisoners in Northern Ireland, and Cyprus against Turkey in respect of the treatment of persons in Northern Cyprus); secondly, where the applicant State seeks redress for one or more of its own citizens whose rights have been violated by another State (examples include a claim by Denmark against Turkey that one of its citizens had been tortured by the police); and, thirdly, claims by States that are generally concerned with human rights violations in another state (examples include claims by Norway, Denmark, Sweden and the Netherlands against Greece following the imposition of martial law and the exercise of emergency powers in the late 1960s).  
Most recently, in August 2008, Georgia commenced proceedings against Russia arising out of this summer’s conflict within the territory of Georgia.  Georgia applied for interim measures of protection and the Court ordered that Russia should refrain from taking any measures which may threaten the life or health of the civilian population within Georgia.
The great majority of claims received and determined by the Court have been individual applications.  These are claims brought by an individual or group claiming to be a victim of a violation of rights guaranteed by the Convention for which the Contracting State is responsible.  In order to bring such a claim, the individual or group must establish, among other things, that it is truly the victim of the alleged violation of rights, that it has exhausted any available and effective domestic remedies, that the complaint is not substantially the same as any previous complaint, and that the complaint has not been submitted to any other procedure of international investigation or settlement.  Some 20 or so complaints of this sort against Azerbaijan have resulted in final judgments by the Court.
For both sorts of cases, the responsibility of a Contracting State both extends to and is limited under Article 1 of the Convention to violations of human rights occurring “within its jurisdiction.”  This concept of jurisdiction is primarily territorial in scope, that is, it is limited to the physical territory of the State concerned.  A State has both negative and positive obligations to protect Convention rights within its jurisdiction: not only must it not perpetrate violations of Convention rights itself or through its agents and authorities, it must also take action to prevent non-state actors from perpetrating violations within its jurisdiction.
In exceptional circumstances, however, a State may be held responsible for acts performed and/or which produce effects outside its territory.  Thus, where a State exercises physical control over foreign territory (whether it does so lawfully or unlawfully), it is under an obligation to secure, within such territory, the rights set out in the Convention.  Similarly, where persons who are in the territory of one State are found to be acting under another State’s authority or control (whether directly or officially, or indirectly or informally), then the second State may be responsible for their acts.  For example, the Court has found Russia responsible for certain conduct of authorities of the so-called Moldavian Republic of Transdniestria even though that conduct occurred outside the territory of Russia and within the territory of Moldova.
There is a presumption that a State’s jurisdiction extends to all of its territory.  However, and again in exceptional circumstances, a State may not be held liable for violations of rights that occur in areas of its territory within which it is prevented from exercising normal authority by the presence or conduct of forces of another State or separatist forces  whether or not they are allied to a foreign State.  The Court will, though, enquire closely into the true extent of the State’s ability to exercise control within such an area and it has held that even though a State’s effective control may be very limited, it is nevertheless under a positive obligation to extend its authority throughout all of its territory.  It has done so especially where the competing authority is neither allied to a foreign state nor has separatist tendencies, as was the case with a complaint it upheld against Georgia arising out of acts within the Ajarian Autonomous Republic.
When it confirmed to the Court that it had ratified the Convention, the Republic of Azerbaijan declared that “it is unable to guarantee the application of the provisions of the Convention in the territories occupied by the Republic of Armenia until these territories are liberated from that occupation.”  The Convention does not itself permit declarations of this sort and the Court will not, in general, recognize them.  If the Court received a claim against Azerbaijan concerning events within the territory the subject of the declaration, the Court will investigate the facts and reach a conclusion as to whether Azerbaijan has “jurisdiction,” and therefore is potentially responsible, for allegations of mistreatment on the basis of the principles already discussed.
Jurisdiction is also important in one further sense: the Convention is binding on a Contracting State only in respect of matters or events that occur after its entry into force for that State.  The Convention entered into force for Azerbaijan on 15 April 2002.  Accordingly, the Court does not have jurisdiction over claims brought against Azerbaijan in respect of matters or events arising prior to this date.  Many of the individual applications brought against Azerbaijan have been dismissed, without consideration of their merits, on this basis.