The scope and conditions for the exercise of jurisdiction by the States Parties to the European Convention on Human Rights
The issue of the scope and conditions for the exercise of jurisdiction by the States Parties to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is considered as one of the most multifaceted issues of the ECHR regime and the case law of the European Court of Human Rights (ECtHR).
The issue of jurisdiction, as you know, is closely linked to the Art. 1 of the ECHR. However, in this perspective, it is useful to highlight that Art. 1 of the ECHR does not focus on the exercise of jurisdiction by the State as such but on determining whether a given person, at a given time and place, is under the State’s jurisdiction. It should be also noted that, under the ECHR, the state is not defined as it is defined in international law, but as a holder of the domestic powers. Therefore, the ECtHR may revert to examine whether the infringement has been committed, either as a result of its internal law or practice of its organs only if at first confirmed that the person is indeed “within the jurisdiction” of the State-Party.
The ECtHR found that within the meaning of Article 1 the State-Party essentially exercises jurisdiction in its territory. However, in exceptional circumstances, the State may exercise jurisdiction outside its territory. The first situations constitute territorial jurisdiction, and the second extraterritorial jurisdiction. Within these two models of the jurisdiction the ECtHR has developed a number of specific conditions and tests. Unfortunately, the case law is not consistent in this regard. This is indicated by the doctrine of international human rights law, which highlights the need to develop clear criteria for both territorial and extra-territorial jurisdiction.
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