HASSAN v. THE UNITED KINGDOM – JUDGMENT
39
no. 31821/96, 16 November 2004, the Court indicated that, had it been established
that Turkish soldiers had taken the applicants’ relatives into custody in Northern Iraq,
taken them to a nearby cave and executed them, the deceased would have been within
Turkish jurisdiction by virtue of the soldiers’ authority and control over them. In
Al-Saadoon and Mufdhi v. the United Kingdom (dec.), no. 61498/08, §§ 86-89,
30 June 2009, the Court held that two Iraqi nationals detained in British-controlled
military prisons in Iraq fell within the jurisdiction of the United Kingdom, since the
United Kingdom exercised total and exclusive control over the prisons and the
individuals detained in them. Finally, in Medvedyev and Others v. France [GC],
no. 3394/03, § 67, ECHR 2010-..., the Court held that the applicants were within
French jurisdiction by virtue of the exercise by French agents of full and exclusive
control over a ship and its crew from the time of its interception in international
waters. The Court does not consider that jurisdiction in the above cases arose solely
from the control exercised by the Contracting State over the buildings, aircraft or ship
in which the individuals were held. What is decisive in such cases is the exercise of
physical power and control over the person in question.
137. It is clear that, whenever the State through its agents exercises control and
authority over an individual, and thus jurisdiction, the State is under an obligation
under Article 1 to secure to that individual the rights and freedoms under Section 1 of
the Convention that are relevant to the situation of that individual. In this sense,
therefore, the Convention rights can be ‘divided and tailored’ (compare Banković,
cited above, § 75).
(γ) Effective control over an area
138. Another exception to the principle that jurisdiction under Article 1 is limited to
a State’s own territory occurs when, as a consequence of lawful or unlawful military
action, a Contracting State exercises effective control of an area outside that 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 the Contracting State’s own armed forces, or through a subordinate local
administration (Loizidou (preliminary objections), cited above, § 62; Cyprus v. Turkey
[GC], no. 25781/94, § 76, ECHR 2001‑IV, Banković, cited above, § 70; Ilaşcu, cited
above, §§ 314-316; Loizidou (merits), cited above, § 52). Where the fact of such
domination over the territory is established, it is not necessary to determine whether
the Contracting State exercises detailed control over the policies and actions of the
subordinate local administration. The fact that the local administration survives as a
result of the Contracting State’s military and other support entails that State’s
responsibility for its policies and actions. The controlling State has the responsibility
under Article 1 to secure, within the area under its control, the entire range of
substantive rights set out in the Convention and those additional Protocols which it
has ratified. It will be liable for any violations of those rights (Cyprus v. Turkey, cited
above, §§ 76-77).
139. It is a question of fact whether a Contracting State exercises effective control
over an area outside its own territory. In determining whether effective control exists,
the Court will primarily have reference to the strength of the State’s military presence
in the area (see Loizidou (merits), cited above, §§ 16 and 56; Ilaşcu, cited above,
§ 387). Other indicators may also be relevant, such as the extent to which its military,
economic and political support for the local subordinate administration provides it
with influence and control over the region (see Ilaşcu, cited above, §§ 388-394).
140. The ‘effective control’ principle of jurisdiction set out above does not replace
the system of declarations under Article 56 of the Convention (formerly Article 63)
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