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European Human Rights Law - Essay Example

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“As a general rule, the notion of ‘jurisdiction’ within the meaning of article 1 of the Convention … is ‘primarily’ or ‘essentially’ territorial.” (Grand Chamber of the European Court of Human Rights in Assanidze v Georgia (2004) para 137.) Examine how far the exceptions to this general rule do and should extend…
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European Human Rights Law
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Download file to see previous pages Thus, under Articles 1, the Member Nations are accountable for the infringement of the safeguarded freedom and rights of any individual within their jurisdiction or competence –particularly at the juncture of the infringement. In Assanidze v Georgia1 case, the pivotal issue before the court was whether the jurisdiction can be exercised by the Central government of Georgia in the “Ajarian Autonomous Republic” as the Georgia encountered some intricacies in inflicting its authority over the local authority of the autonomous republic. The view of the court was that the “ Ajarian Autonomous Republic “ is without any doubt an integral province of the Georgia and subject to its control and competence . Thus, in this case, no debate concerning the “effective control” was thrown up2. Though a state is having jurisdiction throughout its territory, there could be some extraordinary scenarios where a State could not exercise its authority in some regions in its territory. So as to corroborate whether such scenario is existing , the Court will be looking into not only the objective facts but also the State’s demeanour as the State has the positive duty to initiate apt steps to make sure that there exists a respect for human rights within its whole of its region. The court will also look into in an extraordinary scenario the acts of a State which created impacts or happened outside its jurisdiction or territory, which could be regarded as exercise of its jurisdiction. Further, if in the outside territory of a State, if a State is exercising its control over its local administration, mainly through its military and fiscal support, then it could be conceived as the State is having jurisdiction in such territories3. Only under exceptional scenarios , jurisdiction is supposed on the footing of non-territorial issues like – the criminal activities by any individuals in abroad against the interest of the its nationals or against the country ; actions by public officials carried out in abroad by consular and diplomatic representatives of the State ; certain acts carried out on the board of vessels flying the State flag or spacecraft or aircraft registered in such a nation ; and especially in relation to grave international crimes. In Gentilhomme and Others v France,4 it was held that the concept of “ jurisdiction” within the meaning of Article 1 of the convention must be regarded as mirroring the status under public international law. In Bankovic and Others v Belgium and other Contracting States5, it was held that the concept “jurisdiction” is essentially or primarily territorial. In Lozidou v Turkey6 , the territorial jurisdiction covers any area which, at the time of the said infringement, is under the “overall control of ‘of the state concerned, which is in addition to the State territory proper. In Cyprus v Turkey [GC]7 , the term jurisdiction refers notably to occupied regions except the areas which fall outside such control8. In Illascu v Moldova and Russia9 case, the court substitutes the “ effective control” test by appending two more new components; the “survival through support” test and the “ decisive influence “ test. In this case, the court has not given any significance to the “effective control” but substituted the same with the concept “effective authority.” In Moldova’ ...Download file to see next pagesRead More
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