The State jurisdiction criterion and responsibility for violations of the ECHR. Comments in the light of the Strasbourg case law concerning a territorial State
Article 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR/the Convention) introduces a State jurisdiction as a criterion related to obligations arisen out for the State-Parties to the Convention, in consequence, of relevance for their responsibility under the ECHR. This makes a State jurisdiction one of the central concepts in the Convention’s system, as well as reflects a characteristic dissimilarity compared to the function of State jurisdiction in general international law. A strong link between jurisdiction and responsibility is constantly emphasized by the European Court of Human rights (the ECtHR/ the Court), however its case law generally does not give either a clear and coherent answer what the relationship exactly is. In particular, the relation between jurisdiction criterion and attribution of alleged act to a given ECHR State-Party is unclear.
The article focuses only on the relationship between the concepts of State jurisdiction and responsibility in the ECHR system. This question has been intentionally analyzed in the light of the ECtHR’s case law concerning a territorial State. The analysis reveals that the abovementioned relationship ‒ as it stands in the Strasbourg jurisprudence ‒ deviates from how it should be shaped with the view of conceptual distinctiveness between concepts of jurisdiction, attribution and responsibility. In some cases the Court seems to rely on the jurisdiction criterion as a sole basis pulling the State responsibility, neglecting the attribution element. The method has been mainly illustrated by the judgment in Sargsyan v. Azerbaijan case. There are also cases where the Court also omitted the attribution element as such, but used its tests to determine State jurisdiction in turn (decisions: Azemi v. Serbia; Djokaba Lambi Longa przeciwko Niderlandom). The article concludes with the comment that consistent and appropriate “demarcation” of State jurisdiction and responsibility, with simultaneous and increased used of attribution element, can positively contribute to attaining a better cohesion within the ECtHR’s jurisprudence, as well cohesion of the ECHR system with general international law.
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