Doc. 9730

11 March 2003

Areas where the European Convention on Human
Rights cannot be implemented

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Christos Pourgourides, Cyprus, Group of the European People's Party

Summary

The European Convention on Human Rights has been ratified by all member states of the Council of Europe and is applicable to everyone within their jurisdiction. There should therefore be no legal vacuum. Yet there are areas where the application of the Convention comes up against insurmountable obstacles, for instance, either because of internal conflicts or as a result of the occupation of part of a member state's territory by another state.

The Assembly considers that the best way to put an end to such situations would be to create a post of Public Prosecutor at the European Court of Human Rights. It proposes that this function be entrusted to the Council of Europe's Commissioner for Human Rights.

I.       Draft recommendation

1. The Assembly notes that serious violations of human rights are committed in certain areas on the territory of Council of Europe member states and that the Council of Europe’s potential is insufficiently exploited in ending or preventing them.

2. From a legal point of view, the High Contracting Parties to the European Convention on Human Rights (ECHR) secure to everyone within their jurisdiction the rights and freedoms defined in the Convention.

3. The ECHR is applicable throughout the territory of a member state. It is also applicable in the event of civil war, and even in the event of derogation from the ECHR in application of Article 15 (time of emergency) of the Convention.

4. In reality, however, there are areas in which obstacles exist to the application of the ECHR. These obstacles take various forms. Some are the result of armed conflict or emergency situations, occupation of part of a state’s territory, or intervention by one state on the territory of another, or even the effective absence of control by a state over part of its territory.

5. Other obstacles are due to the difficulties – sometimes insurmountable - to submit individual applications, either through lack of awareness of the ECHR or for practical reasons.

6. Finally, other obstacles stem from the scale and gravity of violations which could be regarded as war crimes or crimes against humanity, and to which even thousands of individual applications would fail to do justice.

7. In such situations, only state applications enable a situation to be addressed in its entirety. Unfortunately, despite strong recommendations from the Assembly to this effect as regards massive violations of human rights, the states do not use this means of obtaining redress.

8. However, it is first and foremost the responsibility of those states on whose territory violations occur to instigate the necessary investigations and to bring proceedings against the presumed perpetrators. Should they fail to do this, third-party states have a responsibility to act. In order to be able to discharge these responsibilities, they should have the option of exercising universal jurisdiction for all international crimes, including terrorist crimes.

9. The Assembly raises particularly its concern about those situations where member states, as a part of the larger international community, engage in a process of reconstruction following an armed conflict in European territories legally not covered by the ECHR. Those territories should be provided with legal means to ensure that they do not turn into lawless areas in the field of human rights under member states' control.

10. In order to put an end to the existence of areas where the ECHR cannot be implemented, as well as to the impunity enjoyed by perpetrators of the most serious crimes, the Assembly recommends that the Committee of Ministers:

i. take steps to ensure that the ECHR is better known and that training is provided for all those who could help to prevent human rights abuses - lawyers, judges, public prosecutors and civil servants - as well as for those whose actions may give rise to such abuses, particularly members of the armed forces;

ii. envisage an “actio popularis” and create the post of Public Prosecutor at the European Court of Human Rights, who would have the task of bringing actions concerning violations of human rights before the Court;

iii. entrust this task, if necessary, to the Council of Europe's Commissioner for Human Rights, assigning him the necessary resources to carry out this new function;

iv. include in the ECHR an obligation on states to comply with measures imposed by the Court.

11. The Assembly also recommends that the member states introduce legislation on universal jurisdiction, which would enable them to take proceedings against the perpetrators of international crimes.

II.       Explanatory memorandum

      by Mr Pourgourides, Rapporteur

A.       Introductory remarks

1.       Background

1.        The motion for a recommendation on "Lawless areas" within the territory of Council of Europe member States (Doc 8993) instructed the Committee on Legal Affairs and Human Rights to address the situation in areas where the European Convention on Human Rights (ECHR) cannot be implemented in practice, as a consequence of armed conflict or very serious political disputes. Mr Magnuson was appointed Rapporteur on 6 April 2001. Upon his proposal a colloquy was held on 26 November 2002 in Paris. The programme of the colloquy is reproduced in the Appendix. Following the colloquy, Professor Rick Lawson was asked to prepare an expert report, which served as a basis for the preparation of the present document. Following his departure from the Committee, I replaced Mr Magnusson as Rapporteur.

2.       Scope of this report

2.        It is obviously important to define the limits of this report. To begin with, attention will be confined to the application of the European Convention on Human Rights. Although this is by no means the only human-rights instrument that may suffer as a result of armed conflict or very serious political disputes (and indeed previous documents concerning our topic referred in passing to "other human-rights protection instruments"), it seems advisable to focus on the European Convention. After all, this instrument has been ratified by all 44 existing Member States, its importance is recognised throughout the world and its supervisory mechanism is the most sophisticated.1

3.        Secondly, it is certainly tempting to address all sorts of problems that stand in the way to the full application of the Convention. One may think of reservations entered into by individual Member States upon ratification of the Convention, or their failure to ratify protocols with additional rights. One could even enumerate rights and freedoms that are currently not included in the Convention and its protocols but that merit recognition and protection too. However, the inevitable result of such a wide-ranging approach would be a serious loss of focus. It is believed that the present discussion should remain limited to the problems – which are serious enough in themselves - that are typical for those geographical areas that are confronted with political obstacles to the effective enjoyment of the rights and freedoms protected by the Convention.

4.        For exactly the same reason, the present report will not discuss general proposals aimed at improving the effectiveness of the European Court of Human Rights (hereinafter: "the Court") and of the supervisory mechanism more in general. One could, for instance, address problems concerning the control over the execution of the Court's judgments; one could raise the question whether it would not be useful to impose punitive damages or other measures in case of a persistent breach of the Convention. Though these issues are of great importance to the present subject, they are not dealt with, as they have already been covered by Resolution 1268 (2002) and Recommendation 1546 (2002) on the implementation of decisions of the Court. The same holds true for the fact that the Convention does not expressly authorise the Court to adopt binding interim measures. This omission is certainly to be regretted (although one could very well argue that the power to adopt binding interim measures is inherent in the judicial powers of the Court), but again this is a general problem affecting the effectiveness of the Convention as a whole.

5.        For present purposes, "areas" are understood in the geographical sense, not in the sense of policy areas. No attention will therefore be paid to the position of the European Union, which it is hoped will accede to the Convention in the near future.

6.        Finally it should be mentioned that specific situations are referred to in this report merely as examples of the problems at hand. These is no intention in this report to authoritatively establish facts or to determine responsibility for specific events.

3.       The title of this report

7.        In addition it may be useful to pay some attention to the title of this report. Previous documents have featured different titles. Some referred to "lawless" areas within the territory of Council of Europe Member States. The central argument of this report is that no such areas exist. In practice there may be very serious problems concerning the individual's access to court; it may be complicated to establish the facts and to determine who is responsible for violations; it may be equally difficult to ensure compliance with international obligations – but the fact remains that the European Convention does apply. One should avoid the impression that there are regions or local rulers who are above the law. Hence no references will be made in this report to "lawless" areas.

8.        Similar arguments might actually be levelled against the title "Areas where the European Convention on Human Rights cannot be implemented". The word "cannot" could create the impression that it is objectively impossible to implement the Convention. This is not the case in the situations that the Committee on Legal Affairs and Human Rights seeks to address. We do not deal with situations of force majeure, for instance following an earthquake or some other disaster that renders implementation of the Convention objectively impossible. On the contrary, we are confronted with man-made obstacles: armed struggle (as for instance in Chechnya) or break-away regions with self-proclaimed leaders (such as in Transnistria). Of course, the resultant obstacles are by no means less serious than those that flow from natural disasters. But they are essentially of a political nature. Perhaps one might rather opt for the title "Areas within the Council of Europe that are confronted with political obstacles to the effective enjoyment of the rights and freedoms protected by the European Convention on Human Rights", or, if one prefers brevity, "Areas facing obstacles to the effective implementation of the European Convention on Human Rights".

4.       Structure of this report

9.        This report is structured as follows. First a number of brief preliminary remarks will be made concerning the nature of the ECHR and some relevant principles of public international law (Chapter B). Since it is necessary to determine which human-rights standards apply in each of the situations at hand, a rather elaborate typology will be presented in Chapter C. Seven different situations will be distinguished. Although the emphasis of the present report will be on this categorisation, a number of suggestions will be made to enhance the practical enforcement of the standards which have been identified (Chapter D).

B.       Preliminary remarks

1.       On the nature of the ECHR

10.        A few observations on the nature of the ECHR may prove to be helpful in the course of the present report, since any legal regime relating to the areas under review here should reflect this nature as much as possible.

11.        The European Convention on Human Rights operates in a "legal space" ("espace juridique")2 in which common minimum standards in the field of human rights and fundamental freedoms apply. The Convention does not seek to harmonise the domestic legal systems of the Member States. On the other hand, as is noted in the Preamble to the Convention, the aim of the Council of Europe is to achieve "greater unity between its members" and the Court considers it important that treatment is afforded to the cases in the various States party to the Convention.3

12.        As is well-known, the Convention rights and freedoms have both 'negative' and 'positive' dimensions. In the context of the right to life, for instance, the negative obligation enjoins the State to refrain from the intentional and unlawful taking of life.4 Positive obligations include an obligation to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual,5 a procedural obligation to carry out effective investigations when individuals have been killed as a result of the use of force,6 and a procedural obligation to prosecute and punish officials who, through their acts or omissions, are responsible for the death of citizens.7 These obligations of course assume a special importance in areas where there are serious practical obstacles to the full realisation of the Convention.

13.        These rights and freedoms benefit from a system of collective enforcement including a complaints procedure before the Court. In this connection it is well-established case-law that "the procedural provisions of the Convention must, in view of the fact that the Convention and its institutions were set up to protect the individual, be applied in a manner which serves to make the system of individual applications efficacious".8 All Member States of the Council of Europe have ratified the Convention which has gradually acquired, in the words of the Court, the status of a "constitutional instrument of European public order (ordre public) for the protection of individual human beings".9

14.        The pan-European "legal space" consists, like a jigsaw puzzle, of smaller pieces: the 44 High Contracting Parties (HCP) which have all undertaken to secure to everyone "within their jurisdiction" the rights and freedoms defined in the Convention (Article 1 ECHR). No vacuum ought to occur in this "legal space". As we will see, the case-law of the European Court reflects a serious concern to prevent any gaps.

2.       State responsibility for extra-territorial conduct

15.        Since we will come across a number of situations where States perform extra-territorial operations, it is perhaps useful to recall a number of pertinent principles of public international law. "International life provides abundant examples of activities carried on in the territory of a State by agents of another State acting on the latter's behalf", the International Law Commission (ILC) noted in 1975.10 "There is nothing abnormal in this", the ILC added reassuringly: some organs of the State, such as diplomats, are specially appointed to carry on activities in foreign countries. Organs may engage in activities in the territory of another State with its consent, as in the case of the operation of foreign military bases established by agreement. And, alas, sometimes this happens without the consent of the 'target' State: military operations against a State, the operations of intelligence services in foreign territory, and so forth. Whilst discussing the Draft Articles on State Responsibility, the ILC observed in this connection:

      "Such conduct is and remains an act of the State to which the organ belongs, by virtue of draft articles 5 et seq., which set no territorial limitation on the attribution to the State of the acts of its organs"11

16.        It seems safe, therefore, to assume that there is a well-established principle of public international law: extra-territorial conduct of State organs is attributable to the 'sending' State. There is no reason to question the applicability of this principle to the European Convention.12

17.        But if we want to know whether a State party to the ECHR can be held responsible for, say, an act of torture committed by its armed forces abroad, it is not sufficient to know that this act can be attributed to that State. If we once again follow the system of the ILC, State responsibility occurs if conduct (a) is attributable to the State under international law, and (b) constitutes a breach of an international obligation of that State.13

18.        The key question, therefore, is a substantive one: does a State violate its obligations under the Convention if its armed forces torture a person on foreign soil? Is a State party to the ECHR bound to secure the rights and freedoms of persons living in the 'target' State when its organs assume control over them? The answer depends on how one interprets the word "jurisdiction" in Article 1 ECHR:

      "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention."

19.        Accordingly, for an individual to be able to rely on the Convention, he must demonstrate that he was "within the jurisdiction" of the State concerned at the relevant time. As we will see, the definition of "jurisdiction" has been an issue of increasing concern in the case-law of the European Court.

C.       A typology of areas

1.       Situation 1: A High Contracting Party (HCP) operates within its territory and is in full control

20.        The first situation to be discussed concerns the "normal" state of affairs: a High Contracting Party operates within its own territory, whereas the authorities are in full control over the situation. It follows from Article 1 that the State is obliged to "secure" the rights and freedoms defined in the Convention and its protocols.

21.        It is submitted that the case of Gibraltar, which was mentioned in the Introductory Memorandum, is not among the situations that the present report seeks to address. It is true that the Court's Matthews judgment14 still has not been implemented. The reason for this is that the execution of the Court's judgment requires unanimity between all 15 EU Member States, something which still has not been achieved. It would certainly be wrong, however, to say that the Convention "cannot" be implemented in Gibraltar. This was illustrated by the case of McCann a.o., which involved an anti-terrorist operation carried out in Gibraltar.15 The Court found the United Kingdom responsible for a violation of the right to life, and clearly no-one even contemplated that the Convention might not be applicable to the events complained of.16

22.        Perhaps the only issue worth mentioning for present purposes concerns the headquarters of international organisations, where different legal regimes may apply and which, as a rule, enjoy immunity from legal proceedings in the host country. It is undisputed that international organisations play a very important and constructive role in modern society, but their headquarters do amount to (small) areas where the Convention rights and freedoms may not always be fully enjoyed. Whilst no-one would suggest that international organisations are habitual violators of human rights, complaints do occur. In the Netherlands, for instance, an individual recently argued that the International Criminal Tribunal for former Yugoslavia (ICTY) had rejected his application for a job because of his sexual orientation. When he brought a complaint before the Dutch Equal Opportunities Tribunal, the ICTY invoked its immunity from all sorts of legal process. Consequently the Tribunal declared itself incompetent to hear the case.17

23.        In the case of Waite & Kennedy the Court has sought to reconcile the necessary autonomy of international organisations with the need to protect human rights. The Court held:

      "The Court is of the opinion that where States establish international organisations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attribute to these organisations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention, however, if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution. It should be recalled that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective. This is particularly true for the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial [...].

      For the Court, a material factor in determining whether granting ESA immunity from German jurisdiction is permissible is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention."18

24.        In conclusion: if a High Contracting Party operates within its own territory and the authorities are in full control over the situation, the State is obliged to "secure" all rights and freedoms defined in the Convention and its protocols. There are certainly no areas where the Convention "cannot" be implemented. The only exception concerns international organisations having their headquarters within the territory. However, if these organisations provide for internal remedies that offer effective protection of Convention rights, the ECHR is not opposed to their jurisdictional immunity.

2.       Situation 2: A HCP takes action in a civil war or implements emergency measures within its territory

25.        The drafters of the Convention anticipated the possibility of emergency situations threatening the life of the nation, such as a civil war. In these circumstances Article 15 ECHR allows the State to take emergency measures, to the extent strictly required by the exigencies of the situation.

26.        Without going to much into detail, it should be emphasised that Article 15 does not leave the State a carte blanche to take any emergency measure it deems fit. Article 15 lists a number of rights (such as the right to life and the prohibition of torture) that may never be suspended. Additionally the Court must be satisfied that there is an emergency situation threatening the life of the nation and that the measures taken are strictly required by the exigencies of the situation.19 In this connection the Court attaches great weight to the presence of safeguards against abuse, such as a right of detainees to have access to a lawyer and to a doctor. Thus in the case of Aksoy the Court, whilst accepting that there was an emergency situation in the South-East of Turkey, found a breach of Article 5 ECHR since there were no effective safeguards to protect detainees against arbitrary behaviour.20

27.        Finally, Article 15 § 3 requires States to inform the Secretary-General of the Council of Europe of the measures they have taken and the reasons thereof. Although the Court has not yet ruled on the legal consequences of a failure to give notice of emergency measures, it is arguable that a State is estopped from suspending those rights guaranteed by the Convention. As a consequence, the State will continue to be fully bound by the Convention. This position was taken by the Secretary-General of the Council of Europe when addressing the human rights situation in Chechnya under Article 52 of the Convention. When the Russian Minister of Foreign Affairs appeared to rely on Article 15, the Secretary-General observed:

      As am I sure you are aware, in the absence of a communication under Article 15 of the Convention, the obligations of the Russian Federation under the Convention and its Protocols Nos. 1, 3 and 7 continue to be applicable in their entirety to Chechnya.21

28.        In conclusion it is clear that the Convention continues to apply if a HCP is confronted with a civil war or other type of emergency situation. Article 15 ECHR offers the possibility to take the necessary measures, but this is certainly not an unlimited right to suspend the Convention guarantees.

3.       Situation 3: A HCP is unable to control the situation within its territory

29.        Early 1997 the public order in Albania collapsed. The situation that resulted could be distinguished from a civil war, as described in § 3.2, since it was not characterised by military operations against an organised opponent – in the case of Albania there was no effective government in large parts of the country.

30.        The killings and pillages performed by private parties could not be attributed to Albania, and hence could not as such lead to the conclusion that Albania violated its obligations under the Convention. Of course, this is different where it can be proved that the authorities acquiesced or even supported private violations of human rights.22

31.        For the rest, this is a matter of positive obligations. As was noted in § 2.1, practically all Convention rights impose positive obligations on the Member States: an obligation to take preventive operational measures to protect individuals, to carry out effective investigations when individuals have been killed, and so on. It is interesting to note that the Court in its recent Öneryildiz judgment underlined that no distinction may be made between acts, omissions and negligence on the part of the authorities that result in deaths.23

32.        As a rule these obligations are not absolute; the State should take 'reasonable and appropriate measures'.24 It all depends on the circumstances of the case what one can expect from the authorities. However, it is important to note that the Convention continues to apply even where there is a temporary break-down of public order – and it is equally important to note that the burden of proof is on the authorities who must demonstrate that they did what they could to up-hold the Convention standards. Of course this legal construction does not solve all problems presented by the failed State, but at least it provides an impetus for the authorities to do their utmost to secure the rights and freedoms of the Convention to all.

4.       Situation 4: A HCP intervenes in and occupies (part of) the territory of another HCP

33.        It has occurred that a High Contracting Party intervened in the territory of another State party to the Convention and occupied part of it. The Turkish military intervention in northern Cyprus in 1974 and the continuing presence of Turkish armed forces have given rise to jurisprudence which is of obvious significance to our subject. In the case of Loizidou, the Court considered:

      "[...] 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. [...] 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."25

34.        In its more recent Cyprus v. Turkey judgment the Court elaborated on this theme as follows:

      "Having effective overall control over northern Cyprus, its [i.e., Turkey's] 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."26

35.        This position has been confirmed in a fresh set of admissibility decisions in 2002.27 The conclusion is that where one HCP exercises effective overall control over the territory of another HCP, it must secure the entire range of substantive rights set out in the Convention – i.e. both negative and positive obligations. The outcome would appear to be fully in line with the object and purpose of the Convention; "any other finding would result in a regrettable vacuum in the system of human-rights protection".28

36.        Two questions remain. First, what is the situation if a HCP is present in the territory of another Member State, but exercises less than effective overall control? And second, is there any residual responsibility left for the 'host State'? As to the last question, common sense would dictate that it would be unreasonable for a State to be held responsible for events which it is unable to prevent because they occur in a part of its territory that is occupied against its will by a foreign power.29 But there may be 'grey zones' were the 'host State' has some power to exert influence. It is submitted that the State is then under an obligation to protect the rights to the extent that it can.

37.        Both questions were actually raised in the case of Ilascu a.o., now pending before the Court. Four Moldovan citizens brought a complaint about their treatment in the 'Moldovan Republic of Transnistria' (MRT). They complained, inter alia, that they had not had a fair trial and that they were subjected to inhuman prison conditions. The applicants considered that Moldova was responsible for the alleged violations since the Moldovan authorities had not taken adequate measures to put a stop to them. In their submission, the Russian Federation shared that responsibility as the territory of Transnistria was de facto under Russia’s control owing to the stationing of its troops and military equipment there and the support the Russian Federation gave to the MRT. In 2001 the Grand Chamber of the Court declared the case admissible in respect of both Moldova and the Russian Federation.30 This decision illustrates that the Court is prepared to review to conduct of High Contracting Parties on foreign soil.

5.       Situation 5: A HCP performs an ad hoc operation in the territory of another HCP

38.        There is not much case-law on the fifth type of situation, that is the situation where a High Contracting Party performs an ad hoc operation in the territory of another State party the Convention. It would seem that the Strasbourg authorities would follow the same principle as in the northern Cyprus cases discussed in § 3.4.

39.        The most pertinent example is the case of Stocké. Mr Stocké was suspected of tax offences. In order to avoid arrest, he fled to Switzerland and then to France. A private police informer managed to get him back to Germany under a false pretext, where he was arrested by the police. Mr Stocké felt that he was the victim of unlawful collusion between the German authorities and the informer, and complained about unlawful detention and an unfair trial – that is, violations of Articles 5 and 6 of the Convention.

40.        Both the (then) Commission and the Court considered that Mr Stocké had failed to prove that unlawful activities had occurred. But the Commission did examine whether, if it had been otherwise, Mr Stocké's arrest would have violated the Convention:

      "According to Article 1 of the Convention the High Contracting Parties have to ensure the rights under Article 5 § 1 to "everyone within their jurisdiction". This undertaking is not limited to the national territory of the High Contracting Party concerned, but extends to all persons under its actual authority and responsibility, whether this authority is exercised on its own territory or abroad. Furthermore [...] authorised agents of a State not only remain under its jurisdiction when abroad, but bring any other person "within the jurisdiction" of that State to the extent that they exercise authority over such persons. Insofar as the State's acts or omissions affect such persons, the responsibility of the State is engaged."31

41.        Accordingly the State's "jurisdiction" is not limited to its territory; it extends to all persons "under its actual authority and responsibility". The main difference with the northern Cyprus cases is of course that there is no lasting and effective control over an area. The consequence is that the State concerned is not required to secure the entire range of substantive rights set out in the Convention, but rather to respect the individual's rights "to the extent that it exercises authority over such persons".

6.       Situation 6: A HCP intervenes in the territory of a third State not party to the ECHR

42.        Strictly speaking this report should not bother to address operations outside the "legal space" of the Council of Europe, since we are only concerned with areas within Member States where the European Convention cannot be implemented. Yet, it is interesting to give a brief account of some recent developments in the Court's jurisprudence.

43.        In the case of Issa, Turkish forces, which had crossed into northern Iraq during an operation that lasted for approximately four weeks, allegedly arrested and killed a number of Iraqi shepherds. The Turkish government confirmed that an operation of Turkish military forces had taken place in northern Iraq at the relevant time, but denied that Turkish soldiers had been present in the area indicated by the applicants. The Court noted that the alleged killings had taken place outside Turkish territory, but found that there were no grounds for declaring the application inadmissible.32

44.        The same happened in the case of Öcalan. The leader of the PKK was arrested in Kenya by Turkish security forces and transferred to Turkey. He lodged a complaint with the Strasbourg Court, claiming inter alia that Articles 3 and 5 § 1 ECHR were violated by his abduction in Kenya and the circumstances in which his arrest had been carried out. The Court, which was obviously aware of the extra-territorial dimension of the case, declared the application admissible.33

45.        It remains to be seen whether the Court will actually find a violation in Issa and/or Öcalan. One of the questions that the Court will have to answer, is which obligations apply when a HCP operates abroad. It is submitted that the extent to which Contracting Parties must secure the rights and freedoms of individuals outside their borders, is commensurate with the extent of their control. To take Issa as an example: no one would expect the Turkish forces in northern Iraq to secure "the entire range of substantive rights set out in the Convention" (including positive obligations, et cetera) to the Iraqi shepherds over whom they assumed control. But insofar as they actually interfered with the shepherds' lives, the Turkish forces were obliged to respect their rights.

46.        Quite in contrast to Issa and Öcalan, the Court rejected the complaint in the case of Bankovic.34 In this case a number of Yugoslav nationals complained about a NATO attack on a Belgrade-based television station. The attack occurred in the context of 'Operation Allied Force', a military campaign by NATO against the Federal Republic of Yugoslavia. The applicants argued that the TV station had not been not a legitimate target. The respondent States primarily contended that the applicants and their deceased relatives were not, at the relevant time, within their "jurisdiction" and hence not protected by the Convention. To this end they distinguished the bombing of the TV station from the facts in Issa and Öcalan:

      "The arrest and detention of the applicants outside of the territory of the respondent State in the Issa and Öcalan cases (...) constituted, according to the Governments, a classic exercise of such legal authority or jurisdiction over those persons by military forces on foreign soil."35

47.        The Court essentially agreed with the respondent States. It took into account the fact that Yugoslavia was not a Member State of the Council of Europe:

      "It is true that, in its above-cited Cyprus v. Turkey judgment (at § 78), the Court was conscious of the need to avoid “a regrettable vacuum in the system of human-rights protection” in northern Cyprus. However, and as noted by the Governments, that comment related to an entirely different situation to the present: the inhabitants of northern Cyprus would have found themselves excluded from the benefits of the Convention safeguards and system which they had previously enjoyed, by Turkey’s “effective control” of the territory and by the accompanying inability of the Cypriot Government, as a Contracting State, to fulfil the obligations it had undertaken under the Convention.

       In short, the Convention is a multi-lateral treaty operating [...] in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States. The FRY clearly does not fall within this legal space. The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States. Accordingly, the desirability of avoiding a gap or vacuum in human rights’ protection has so far been relied on by the Court in favour of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention."36

48.        One may conclude that the Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States. Issa and Öcalan suggest that a HCP must secure the Convention rights and freedoms to the extent that it can when performing an operation in a third country, but Bankovic expressly points in the opposite direction.

7.       Situation 7: Areas of reconstruction

49.        The last situation is not, or not yet, a separate category in terms of legal obligations. It occurs more and more often that the international community engages in a process of reconstruction following an armed conflict. Bosnia-Herzegevina, Kosovo or East-Timor may be mentioned as examples. Member States of the Council of Europe often participate in these processes, for instance by placing armed forces at the disposal of international organisations such as the United Nations.

50.        That peace-keeping forces violate human rights is not a merely hypothetical situation.37 The question then arises which human-rights standards, if any, apply to these forces. At present no Strasbourg case-law exists, and any answer is complicated by the extra-territorial dimension and by the fact that forces operate within a larger international structure. With a reference to the northern Cyprus cases (see § 3.4), one could well defend the view that States, to the extent that they exercise effective control over a region through their forces and to the extent that they are free to determine, for instance, law enforcement policies, are bound to secure the rights and freedoms of the Convention. It is impossible, however, to analyse this question in any detail here, also because the present report is not meant to address operations outside the "legal space" of the Council of Europe.

D.       Concluding remarks

51.        Having established the various areas, it is clear – at least at the level of legal theory and jurisprudence – that there are no "lawless" areas in Europe.

52.        The Convention applies whenever a High Contracting Party operates within its own territory, and the authorities are in full control over the situation. The same is true when this State exercises effective overall control over the territory of another HCP: it must secure the entire range of substantive rights set out in the Convention (see the case of Cyprus v Turkey). The Convention even continues to apply when a State party is confronted with a civil war or other type of emergency situation, even if Article 15 ECHR offers the possibility to take the necessary measures. Clearly this is not an unlimited right to wantonly suspend the Convention guarantees (Brannigan & McBride, Aksoy).

53.        Where agents of one HCP exercise de facto control over persons and property abroad in a more or less limited, incidental, ad hoc fashion in the territory of another State party to the Convention, the case of Stocké is the only authority to date: "Insofar as the State's acts or omissions affect such persons, the responsibility of the State is engaged". It is uncertain to what extent this principle applies to operations in third States. Issa and Öcalan suggest that the HCP must secure the Convention rights and freedoms to the extent that it can, but Bankovic points in the opposite direction.

54.        Even if there is a temporary break-down of public order, the Convention continues to apply. Positive obligations – which are not absolute – require the authorities to take 'reasonable and appropriate measures' in order to protect the population and to carry out effective investigations when human rights violations have occurred.

55.        So far for the law. In practice there may be very serious problems in areas such as Transnistria, Abkhazia and Chechnya. There may be virtually no individual access to court; there may be no independent and impartial courts; if a complaint reaches Strasbourg it may be almost impossible to establish the facts and to determine who is responsible for violations; it may be equally difficult to ensure compliance with any Court judgments or with international obligations more in general.

56.        How can these problems be overcome? Since political problems are at the root of the difficulties in these reasons, structural solutions must also be of a political nature. The Court cannot be expected to step in and act as a court of first instance:

      "the object and purpose underlying the Convention, as set out in Article 1, is that the rights and freedoms should be secured by the Contracting State within its jurisdiction. It is fundamental to the machinery of protection established by the Convention that the national systems themselves provide redress for breaches of its provisions, the Court exerting its supervisory role subject to the principle of subsidiarity. In that context, Article 13, which requires an effective remedy in respect of violations of the Convention, takes on a crucial function."38

57.        Unfortunately this is all the more true in a situation of armed struggle. The powers of the Court to bring about changes are very limited.

58.        One of the very few things that the Court could do – and should do – is to qualify its Bankovic decision. The conclusion of that case might be interpreted as implying that, in the field of human rights, States are allowed to do abroad what they have undertaken not to do at home. One would not want that idea to gain strength in the "lawless areas" of Europe.

59.        In addition there are some procedural devices that could be very useful in this context.

•       Since the individual victim will have the greatest of difficulties to have access to the domestic courts (let alone to take his case the international courts), it is essential that others take over. At present the Convention allows for inter-State applications (Article 33 ECHR), but States are very hesitant to make use of this instrument. And the more exceptional it is to lodge an inter-State complaint, the more hesitant States will be. Only political pressure may remedy this situation.

      An alternative would be to transform the Commissioner for Human Rights into a Public Prosecutor attached to the Court and/or to introduce an actio popularis. This would allow complaints to be brought on behalf of individuals who cannot do so themselves. The Court's high workload would not necessarily be an argument against these changes: after all, it is more convenient for the Court to receive one 'professional' application about a situation, than a whole series of complaints brought by individual victims. Of course, this alternative would require amendment of the Convention.

•       Prevention is obviously better than cure. Any preventive measure, such as the presence of official observers and human rights NGO's, is vital. From this perspective it is a very important precedent that the CPT has obtained access to the Transnistrian region of the Republic of Moldova.39 In this context, one cannot underestimate the impact of sustained training programmes for lawyers, law enforcement officials, judges, public prosecutors and government officials. A long-term effort is needed here; it would be a mistake to believe that one can establish a 'human rights culture' within a few years.

      Perhaps it is a good idea to create a Voluntary Fund to provide for additional financial resources for training programmes. The Fund might receive contributions from various sources, including from Member States that are found to have breached the Convention more often than one would expect when taking into account their size and the duration of their membership of the Council of Europe. After all, these 'suppliers' of 'repetitive cases' pose a relatively heavy burden on the Convention system – so it would not be exaggerated to expect these States to make a voluntary contribution to the training programmes that may help significantly to lower the Strasbourg case-load.

•       It is uncertain whether States in a situation of conflict should be 'encouraged' to make declarations under Article 15 ECHR.40 As the situation of Chechnya (see § 3.2) demonstrates, a State will continue to be fully bound by the Convention if it does not give notice of emergency measures. In addition little would be gained by stimulating declarations under Article 15, since the Court will not review any emergency measures ex officio.

      Something that could improve in this connection is that attitude of the Secretary-General vis-ŕ-vis emergency situations. No amendment of the Convention is needed; on the contrary. According to Article 15 § 3 ECHR, a HCP must not merely give notice of any emergency measures; it "shall keep the Secretary-General fully informed of the measures which it has taken and the reasons therefor". This language is a standing invitation to the Secretary-General to become actively involved in the situation and monitor it on a regular basis.

60.        Finally, several changes that would improve the effectiveness of the Court in general would certainly be all the more beneficial for the areas where the Convention "cannot" be implemented: enhanced fact-finding facilities, an explicit power to order binding interim measures, a smaller backlog of cases (and hence more speedy decisions), more powers in the area of reparation. There remains a lot to be done.

61.        Furthermore, if an application is not submitted to the European Court of Human Rights in a situation where war crimes or crimes against humanity are occurring, in other words, if a State fails in its responsibility and shirks its obligations, it is the responsibility of other States to take its place by, for example, exercising universal jurisdiction for international crimes. To this end, the States should adopt legislation recognising such universal jurisdiction.

APPENDIX

Programme of the Colloquy held in Paris

on Tuesday 26 November 2002

(World Bank Conference Center, 66 avenue d'Iéna, Paris 16e)

9 h        Opening of the Colloquy by Mr Eduard Lintner, Chairperson of the Committee on Legal Affairs and Human Rights

9 h 15        Introduction by the Mr Göran Magnusson, Rapporteur

9 h 30       Theme I:

      Professor Françoise Hampson, University of Essex (United Kingdom)

10 h        Discussion

10 h 45       Coffee break

11 h        Theme II:

      Mr Alvaro Gil-Robles, Commissioner for Human Rights of the Council of Europe

11 h 15       Discussion

11 h 45        Mr Mark Villiger, Deputy Section Registrar at the European Court of Human Rights

12 h        Discussion

12 h 30       Theme III:

      Ms Patricia Jaspis, lawyer (Brussels)

      Mr Patrick Baudouin, Honorary President of the International Federation for Human Rights (FIDH)

13 h 15       Discussion

13 h 30       Closing of the Colloquy by the Rapporteur, Mr Göran Magnusson

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 8993, Reference No 2581 of 14 March 2001

Draft recommendation adopted unanimously by the Committee on 3 March 2003

Members of the Committee: Mr Lintner (Chairperson), Mr Marty, Mr Jaskiernia, Mr Jurgens (Vice-Chairpersons), Mrs Ahlqvist, Mr Akçam, Mr G. Aliyev (alternate: Mr R. Huseynov), Mrs Arifi, Mr Arzilli, Mr Attard Montalto, Mr Barquero Vázquez, Mr Berisha, Mr Bindig, Mr Brecj, Mr Bruce, Mr Chaklein, Mrs Christmas-Mřller (alternate: Mrs Auken), Mr Cilevics, Clerfayt, Mr Contestabile, Mr Daly, Mr Davis, Mr Dees (alternate: Mr Janssen van Raaij), Mr Dimas, Mrs Domingues, Mr Engeset, Mrs Err, Mr Fedorov, Mr Fico, Mrs Frimansdóttir, Mr Frunda, Mr Galchenko (alternate: Mr Shishlov), Mr Guardans, Mr Gündüz, Mrs Hajiyeva, Mrs Hakl, Mr Holovaty (alternate: Mr Shybko), Mr Jansson, Mr Kelber, Mr Kelemen (alternate: Mr Németh), Mr Kontogiannopoulos, Mr S. Kovalev, Mr Kroll, Mr Kroupa, Mr Kucheida, Mrs Leutheusser-Schnarrenberger, Mr Livaneli, Mr Manzella, Mr Martins, Mr Mas Torres, Mr Masson (alternate: Mr Hunault), Mr McNamara, Mr Meelak, Mrs Nabholz-Haidegger, Mr Nachbar, Mr Olteanu, Mrs Pasternak, Mr Pehrson, Mr Pellicini (alternate: Mr Ianuzzi), Mr Pentchev (alternate: Mr Arabajdiev), Mr Piscitello, Mr Poroshenko, Mrs Postoica, Mr Pourgourides, Mr Raguz, Mr Ransdorf, Mr Rochebloine, Mr Rustamyan, Mr Skrabalo, Mr Solé Tura (alternate: Mrs Lopez Gonzales), Mr Spindelegger, Mr Stankevic (alternate: Mr Lydeka), Mr Stoica (alternate: Mr Coifan) Mr Symonenko, Mr Tabajdi, Mrs Tevdoradze, Mr Toshev, Mr Vanoost, Mr Wilkinson, Mrs Wohlwend

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the Committee: Ms Coin, Mr Schirmer, Mr Ćupina, Mr Milner


1        Of course other supervisory bodies may encounter similar problems when addressing the situation in the areas under review here. Note that the CPT has just published a report on the Transnistrian region of the Republic of Moldova (CPT/Inf (2002)35 of 12 December 2002).

2        See ECtHR, 12 Dec. 2001, Bankovic a.o. v. Belgium a.o. (Appl. no. 52207/99), § 80.

3        See, e.g., the Grand Chamber in ECtHR, 8 Dec. 1999, Pellegrin v. France (Appl. no. 28541/95), § 63.

4        ECtHR, 27 Sept. 1995, McCann v. the UK (Series A, vol. 324), § 148.

5        See, e.g., ECtHR, 14 March 2002, Paul & Audrey Edwards v. the UK (Appl. no. 46477/99), §§ 54-56.

6        See, e.g., ECtHR, 4 May 2001, Kelly a.o. v. the UK (Appl. no. 30054/96), §§ 94-98.

7        See, e.g., ECtHR, 18 June 2002, Öneryildiz v. Turkey (Appl. no. 48939/99), §§ 101-111.

8        See, e.g., ECtHR, 6 Sept. 1978, Klass v. FRG (Series A, vol. 28), § 34.

9        ECtHR, 23 March 1995, Loizidou v. Turkey (prel. obj.), (Series A, vol. 310), §§ 75 and 93.

10        Yearbook of the ILC 1975, vol. II, p. 83.

11        Ibidem. The ILC devoted a special provision, Article 12, to this issue. Although Article 12 was included in the Draft Articles as provisionally adopted on first reading in 1980, it was decided in 1998 to delete it: it was considered unnecessary to devote a separate provision to such an obvious principle. See UN doc. A/53/10, Report of the ILC on the Work of its Fiftieth Session (1998), § 426.

12        See ECtHR, 10 July 2001, Avsar v. Turkey (Appl. no. 25657/94), § 284: "Responsibility under the Convention is based on its own provisions which are to be interpreted and applied on the basis of the objectives of the Convention and in light of the relevant principles of international law". See also ECtHR, 21 Nov. 2001, Al-Adsani v. the UK (Appl. no. 35763/97), § 55, and ECtHR, 7 Nov. 2002, Veeber v. Estonia (Appl. no. 37571/97), § 54.

13        See Art. 2 of the ILC Draft Articles on State Responsibility, as adopted on 9 Aug. 2001.

14        ECtHR, 18 Feb. 1999, Matthews v. the UK (Appl. no. 24833/94).

15        ECtHR, 27 Sept. 1995, McCann v. the UK (Series A, vol. 324).

16        See also Matthews, § 30: "The Court ... recalls that the Convention was extended to the territory of Gibraltar by the United Kingdom’s declaration of 23 October 1953..., and Protocol No. 1 has been applicable in Gibraltar since 25 February 1988. There is therefore clearly territorial “jurisdiction” within the meaning of Article 1 of the Convention".

17        Commissie gelijke behandeling, 9 July 2002, Kojadinovic v. ICTY (case 2002-85).

18        ECtHR, 18 Feb. 1999, Waite & Kennedy v. FRG (Appl. no. 26083/94), §§ 67-68.

19        See, e.g., ECtHR, 26 May 193, Brannigan & McBride v. the UK (Series A, vol. 258-B), § 43.

20        ECtHR, 18 Dec. 1996, Aksoy v. Turkey (Reports 1996, p. 2260), § 83.

21        Letter from the Secretary-General of the Council of Europe to the Minister of Foreign Affairs of the Russian Federation, dated 27 January 2000; PACE doc. 8671 Add. revised, of 3 April 2000.

22        See, mutatis mutandis, ECommHR, 12 Oct. 1989, Stocké v. FRG (Appl. no. 11755/85), Series A, vol. 199, p. 24, § 168; ECtHR, 9 Dec. 1994, López Ostra v. Spain (Series A, vol. 303-C), § 52; ECtHR, 5 Nov. 2002, Allan v. the UK (Appl. no. 48539/99), § 52.

23        ECtHR, 18 June 2002, Öneryildiz v. Turkey (Appl. no. 48939/99), § 65. On the other hand, the Convention does not impose a regime of strict liability on the part of the authorities: ECtHR, 24 Oct. 2002, Mastromatteo v. Italy (Appl. no. 37703/97), § 95.

24        See, e.g., ECtHR, 28 Oct. 1998, Osman v. the UK (Reports 1998, p. 3124), §§ 115-116, and more recently and in a different context, ECtHR, 26 Nov. 2002, E. a.o. v. the UK (Appl. no. 33218/96), § 99.

25        ECtHR, 23 March 1995, Loizidou v. Turkey (prel. obj.), (Series A, vol. 310), § 62.

26        ECtHR, 10 May 2001, Cyprus v. Turkey (Appl. no. 25781/94), § 77, emphasis added.

27        See, e.g., ECtHR, 31 Jan. 2002, Adali v. Turkey (Appl. no. 38187/97).

28        ECtHR, 10 May 2001, Cyprus v. Turkey (Appl. no. 25781/94), § 78.

29        Note that, apparently to be on the safe side, Azerbaijan declared, when ratifying the Convention, 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" (Declaration of 15 April 2002).

30        ECtHR, 4 July 2001, Ilascu a.o. v. Moldova and the Russian Federation (Appl. no. 48787/99), admissibility decision.

31        ECommHR, 12 Oct. 1989, Stocké v. FRG (Appl. no. 11755/85), Series A, vol. 199, p. 24, § 166.

32        ECtHR, 30 May 2000, Issa a.o. v. Turkey (Appl. no. 31821/96).

33        ECtHR, 14 Dec. 2000, Öcalan v. Turkey (Appl. no. 46221/99), pp. 21 and 25.

34        ECtHR, 12 Dec. 2001, Bankovic a.o. v. Belgium a.o. (Appl. no. 52207/99). It should be noted that the present author was involved in this case as legal advisor to the applicants.

35        Ibidem, § 37. During the hearing of 24 Oct. 2001, Mr Greenwood QC emphasised, on behalf of the respondent States, that Mr Issa was arrested before he was killed: "the case concerned allegations – and there have been no findings of fact – about the detention and murder of prisoners and, on those allegations, if they turn out to be true, the persons concerned were plainly – from the time of their arrest and by virtue of that arrest – within the control of Turkey". See Verbatim record, p. 10.

36        Ibidem, § 80, emphasis in original.

37        See for instance the report by the Commissioner for Human Rights, Mr Alvaro Gil-Robles, Kosovo: the human rights situation and the fate of persons displaced from their homes (Strasbourg, 16 Oct. 2002), doc. CommDH(2002)11.

38        EHRM, 10 May 2001, Z v. the UK (Appl. no. 29392/95), § 103.

39        See footnote 1.

40        See the Introductory Memorandum (document AS/Jur (2002) 15 rev), p. 5.