MR JUSTICE BURTON
Approved Judgment
Human Rights Watch & Ors v SoS for the Foreign &
Commonwealth Office & Ors
intervening parties, including the European Commission, submitted that Article 1
ECHR excluded the application because the Turkish lessors were not within the
jurisdiction of Ireland when the aircraft was seized. (The submissions under Article 1
which were made were that the application was outside the Convention for other
reasons). Nevertheless, the Court addressed the issue in paragraph 137 of its
Judgment:
“In the present case it is not disputed that the act about which
the applicant complained, the detention of the aircraft leased
by it for a period of time, was implemented by the authorities of
the respondent state on its territory following a decision to
impound of the Irish Minister for Transport.
In such
circumstances the applicant company, as the addressee of the
impugned act, fell within the “jurisdiction” of the Irish state…”
In Markovic, the claimants were relatives of people killed on 23 April 1999 when the
RTS building in Belgrade was struck by a missile launched from a NATO aircraft.
They claimed damages in the Rome District Court. On 8 February 2002 the Court of
Cassation ruled that the Italian Courts had no jurisdiction to hear the claim. The
applicants contended that their rights under Article 6 ECHR had been infringed. In
answer to a preliminary question raised by the ECtHR of the parties, the Italian
Government conceded that the applicants had brought themselves within the ambit of
the State’s jurisdiction by lodging a claim: paragraph 38 of the Judgment. In the light
of that concession, it is unsurprising that the Court held that if civil proceedings are
brought in domestic courts, the state is required by Article 1 ECHR to secure in those
proceedings respect for the right protected by Article 6, so that “there indisputably
exists…a “jurisdictional link”” for the purposes of Article 1: paragraphs 54 and 55 of
the Judgment.
57.
Although the Court did not spell out its reasoning in either case for its conclusion that
the contracting state owed the relevant convention obligation to the applicants, the
outcome was not unprincipled. In Bosphorus the aircraft’s lessors had submitted
their property to the territorial jurisdiction of the Irish State when they caused it to be
flown to Dublin. Accordingly, although they were not physically present in Ireland at
the time of the impugned act, their property was within its territorial jurisdiction. In
Markovic, the applicants had submitted to the jurisdiction of the Italian Courts when
they brought their civil claims there. Like the aircraft lessors, they had voluntarily
submitted to the jurisdiction of a contracting state and were entitled to the benefit of
the only relevant article of the Convention, Article 6, in the determination of their
civil claim.
58.
Neither case assists the two Claimants. In so far as their claim is founded on belief
that their right to respect for their private life has been infringed, neither of them
allege that, at any material time, they enjoyed a private life in the United Kingdom.
Accordingly, under Article 1, the United Kingdom was under no obligation to respect
it. The analogy with Bankovic is close. Further, information about a person is not
property: OBG Limited v Allan [2008] 1 AC 1 at paragraph 275 per Lord Walker.
Even in the autonomous Convention meaning, it has never been held to amount to a
“possession”, for the purposes of Article 1 of Protocol 1. Accordingly, the retention
by GCHQ of information shared with it by the NSA, even in circumstances which do