The Article 1 of the ECHR obliges contracting States to secure to everyone within their

jurisdiction the rights and freedoms under the Convention. For Russia to potentially incur
liability for any of the events in Ukraine relating to the MH17 incident, it must be shown that the
deceased persons were capable of falling within Russias jurisdiction in accordance with the
Article 1 of the ECHR. Only then would the European Court of Human Rights proceed to
determine whether Russia failed to secure to them the rights and freedoms under the Convention.
The scope of jurisdiction under this Article has created a lot of ambiguity, especially after the
failure of the Court to clearly define the extent of jurisdiction in extraterritorial actions of States
Parties.
The Court has held in number of cases that 'jurisdiction' under this Article is primarily territorial.
(such as Bankovic v. Others). However, the Court in its case-law has recognized a number of
exceptional circumstances capable of giving rise to the exercise of jurisdiction by a State outside
its own territory.
The main exceptional circumstances recognized by the Court and relevant for this issue are state
agent authority and control and effective control; these control tests would be analyzed
accordingly.
state agent authority and control
state agent authority and control refers to situations in which an individual comes under the
physical power or control of an agent of the State. The Court in Al Skeini clarified that what is
decisive in such cases is the exercise of physical power and control over the person in question.
In this case, the Court found that the United Kingdom assumed According to the findings of the
Court it is essential that the state exercises authority and responsibility over security maintenance
in the area where the events took place, and through its deployed soldiers, it exercised control
over the persons killed during security operations, thus bringing them within its jurisdiction.
In order to fall under this exception, it would have to be shown that agents of the State
(Russia)exercised physical power and control over the victims of the crash. However, in the case
at hand, Russias jurisdiction over the deceased persons cannot be established using the above
test because they were killed by what was most likely a missile attack on the plane, and neither
the plane nor the individuals therein where subject to physical power or control of Russias State
agents. It is therefore unlikely that the argument for state agent control will form a part of the
potential applicants submissions or in any case present any difficulty for Russia. After

establishing that state agent authority and control is likely not applicable in the case of MH17,
we shall analyze the effective control test.
'effective control.
According to the findings of the ECHR in Loizidou a State can, as a result of its lawful or
unlawful military action, exercise control of an area outside its national territory, whether
directly through its own armed forces or indirectly through a subordinate local administration. In
addition, the Court also stated that where a local administrations survival is dependent on
military or other support from a State, that State (the controlling state) will be responsible for the
local administrations actions, regardless of whether it exercises detailed control over them. The
controlling State will then have the responsibility under Article 1 to secure, within the area under
its control, the rights set out in the Convention. (Cyprus v. Turkey)
In determining whether a State exercises effective control, the Court will primarily look at the
level of the States military presence in the area, as well as the extent to which its military,
economic and political support for the local subordinate administration provides it with influence
and control over the area. (Illascu). In the Illascu v. Moldova and Russia case the Court found
that the applicants fell under Russias jurisdiction since the Moldovan separatist administration
(MRT) remains under the effective authority, or at the very least under the decisive influence, of
the Russian Federation, and in any event that it survives by virtue of the military, economic,
financial and political support given to it by the Russian Federation.
In the same case, the Court relied on the following EVIDENCE of effective control:
i.

Large quantities of ammunition transferred to the separatists by Russia,

ii.

Participation of Russian State agents that joined the MRT and fought with the separatists,

iii.

Support for the separatists through political declarations by leaders of the Russian

Federation; and
iv.

Financial support through agreements between the MRT and Russia including the

provision of gas at reduced prices, reduction of debts owed to Russia, division of income from
the sale of equipment, etcetera.
In the Catan case, theCourt referred to the findings in Ilascu(relating to the above facts)
and added that:
i.

The continued presence of Russian military and armaments,

ii.

The dependence of the population on free or highly subsidised Russian gas supplies,

iii.

The large scale humanitarian aid from Russia; and

iv.

Granting of Russian nationality to almost one fifth of those living in the region.

Based on these findings, the Court held that Russia exercised effective control and decisive
influence over the MRT during the period in question, thus bringing the applicants within its
jurisdiction.
A determination as to whether exceptional circumstances exist to justify a finding of the exercise
of extraterritorial jurisdiction requires reference to particular facts of each case. The question that
shall be answered is Whether Russias jurisdiction can be established through the effective
control test.
In relation to the present case, the witness statement summarized above demonstrates a link
between Russia and the separatist groups in Ukraine. The supportive statements from Russia, the
military training offered on Russian territory, the alleged presence of Russian soldiers fighting
alongside the separatists as well as the granting of Russian nationality to people in Ukraine are
all indicative of political and military support. Further, the provision of economic support is also
shown through the provision of humanitarian aid. Consequently, it is possible to make a case that
the evidence reveals a clear indication that Russia exercised some level of control and influence
over the separatists.
What remains in doubt however, is the degree of the alleged control and influence, and whether
the information shows the requisite amount of control and influence for the purpose of bringing
the events within Russias jurisdiction. The only indication of a threshold for the control and
influence that must be proved can be found in Ilascu where the Court refers to Russias effective
authority, decisive influence and the fact that the MRTs survival was dependent on Russias
support. In Catan, the Court refers to the MRTs establishment and ability to continue in
existence as a result of Russias support and the groups high level of dependency on Russia.
It is evident from the above analysis that there is no exact standard that must be followed.
Although the standard is apparently lower than that required to establish responsibility through
effective control under the ICJ jurisprudence, it is nevertheless required to show a high level of
reliance by the separatist group on its controlling State, in this case, Russia. In the present case,
the witness stated that the separatists received both local and foreign humanitarian aid, Russia
being only one of the donors. She added that she treated only a handful of Russian soldiers.

Reports of the presence of Russian soldiers and ammunition in Eastern Ukraine have been
minimal. These are possible arguments that Russia may rely on to challenge its jurisdiction over
the deceased persons on the basis of effective control.
Although the available information appears to show Russian support to the separatists, it does
not seem sufficient to fulfill the Courts standards nor does it prove the groups inability to exist
or survive without Russian support.
Nevertheless, the Court may still find in favor of the applicants for the following reasons:

This is only a preliminary investigation with only the least possible sources of

information to work with;

There is a lack of clarity as to the standard for finding effective authority or decisive

influence; and
The Court has consistently stated that the Convention is an instrument for the protection
of individual human beings that requires that its provisions be interpreted and applied so
as to make its safeguards practical and effective.

With regard to the foregoing, there is evidently considerable strength in the argument that Russia
may be found to have effective control over the separatists, and as a result, a high likelihood that
the deceased persons could fall under Russias jurisdiction. Therefore this is the most likely
choice for the applicants in seeking to establish Russias extra-territorial jurisdiction.

What is also important to state, since in Eastern Ukraine was an armed conflict ongoing, is that
the Court has recently confirmed (for example in Al-Skeini), in conformity with jurisprudence of
the ICJ, the continuous application of the rights and safeguards under the Convention even
during periods of armed conflict.