The Dekagram: 24th February 2025

Following on from chambers’ highly successful and well attended conference on accidents and deaths abroad on 13^th February, Thomas Yarrow has been thinking about the extraterritorial application of the European Convention on Human Rights, a question which should be of concern to all cross border practitioners and indeed anyone who might encounter a claim with a foreign element against an emanation of the state. The results of his cogitation are every bit as emphatic as you would expect.

Extraterritorial jurisdiction of the ECHR

On the 13^th February, Sir Peter Thornton KC, former Chief Coroner of England and Wales, delivered a talk at a Chambers event about inquests into deaths abroad. In the course of his talk, an interesting question arose as to when the Article 2 enhanced duty of investigation applies to the enquiry into the death of an English resident overseas. The answer is not altogether straightforward.

The enhanced duty applies where there is suspicion that a person’s death may have arisen from a breach by the state of Article 2 ECHR. The necessary premise for such must be that the United Kingdom’s obligations under the Convention were engaged in the first place under Article 1. Article 1 requires the Contracting Parties to secure the Convention rights to ‘everyone within their jurisdiction’.

It is firmly established in the Strasbourg jurisprudence that ‘within their jurisdiction’ does not simply mean within the State’s territory, and so an enhanced Article 2 duty cannot be excused merely because a death occurs overseas. Rather, there is an extraterritorial jurisdiction of an ECHR Contracting State which arises in certain circumstances. The leading modern ECtHR authority on those certain circumstances is Al-Skeini v The United Kingdom (2011) 53 EHRR 589.

In that case, six applicants applied on behalf of their deceased relatives, who had died allegedly at the hands of British troops in Iraq. The applications were brought on the basis that the investigation by the Royal Military Police into the deaths had not complied with the procedural obligations of Article 2. The threshold question was whether the deceased persons were within the UK’s Article 1 jurisdiction.

The Court summarised the caselaw and set out two essential categories of extraterritorial exercise of jurisdiction:

• State agent authority and control [133-137]: this covers a broad range of cases where agents of a Contracting State operating within the territory of a non-Contracting state exercise authority and control over individuals, (often referred to as jurisdiction ratione personae);
• Effective control over an area [138-140]: this covers situations where (often as a consequence of military action) a Contracting State exercises effective control of an area outside its national territory (often referred to as jurisdiction ratione loci). There is an effective subset of this termed the ‘espace juridique’ [141-142], where the territory of one Convention State is occupied by the armed forces of another, and to do otherwise than hold the occupying State accountable for breaches of human rights in the occupied territory would result in a vacuum of protection within the Convention legal space.

The first of these, the ratione personae, was then divided by the Court in Al-Skeini into three sub-categories: first, acts of diplomatic and consular agents [134]; second, exercise of public powers through consent, invitation or acquiescence of the government of another territory [135]; third, use of force by state agents operating ex-territorially to bring an individual under authority and control of contracting state [136].

This article focuses on the first of these sub-categories – acts of diplomatic and consular agents – which is perhaps the most common situation a coroner might find themselves in when considering whether the Article 2 enhanced duty applies: what is the situation where the death somehow involves the British Embassy or British Consul? Al-Skeini cited three Strasbourg cases on extraterritorial jurisdiction in a diplomatic/consular context, all of them already by 2011 relatively old, and by now considerably so: X v Federal Republic of Germany (1611/62), X v UK (7547/76), and M v Denmark (17392/90) (also known as WM). None of them involved deaths.

In X v Federal Republic of Germany the Applicant, a West German national, alleged that German consulate officials in Tangiers had demanded that the Moroccan authorities expel him from the country. He made a number of allegations against German consulate officials: that they had accused him of using a title of nobility fraudulently; that they had engineered the dismissal of his wife from employment; that they had advised his wife against marrying him and didn’t recognise the validity of the marriage; and that they had failed to act on information he had given them concerning theft of German state documents from the consulate. He complained that these acts breached his ECHR rights: Articles 3, 5, 6, 8, 12 and 14.

In relation to Article 1 jurisdiction, the Commission held that ‘in certain respects, the nationals of a Contracting State are within its “jurisdiction” even when domiciled or resident abroad; […] in particular, the diplomatic and consular representatives of their country of origin perform certain duties with regard to them which may, in certain circumstances, make that country liable in respect of the Convention’. The Commission concluded that in these circumstances, the jurisdiction of the then Federal Republic of Germany would be engaged but went on to conclude, however, that the Applicant had not furnished sufficient proof in support of his allegations and found the application inadmissible on the basis of being manifestly unfounded.

In X v United Kingdom (App. No. 7547/76), the husband of the Applicant, a British national, removed her daughter from the UK and took her to Jordan, where he himself subsequently absconded. The Applicant was granted custody and a committal order against the father in the English courts, but sought assistance from the British Consulate in Jordan to obtain custody of her daughter from the Jordanian Court. The Consulate reported on the child’s wellbeing and provided the Applicant with a list of lawyers practising in Jordan who could assist. They also registered her daughter in her passport. The Applicant complained that the failure of the British Consul to intervene in her case violated her Article 6, 8 and 13 rights.

With regard to Article 1, the Commission stated: ‘authorised agents of a State, including diplomatic or consular agents bring other persons or property within the jurisdiction of that State to the extent that they exercise authority over such persons or property. Insofar as they affect such persons or property by their acts or omissions, the responsibility of the State is engaged’. The Commission determined that in this case the jurisdiction of the UK was engaged, but went on to determine that, on these facts, the consular authorities had done all that could be reasonably expected of them. Again it was found that the Applicant’s complaints were manifestly ill-founded and the application was declared inadmissible.

In M v Denmark, the Applicant, a German national, entered the Danish Embassy in East Berlin along with 17 others, to seek permits to leave East Germany and cross into West Germany. The group of 17 were promised impunity and subsequent negotiations on them leaving the country. Embassy staff repeatedly requested that they leave the building, which they agreed to do the following morning. In the meantime, however, the Danish Ambassador invited the East German police into the embassy building, and the adults were detained by the East German authorities. The Applicant complained that his right to liberty and security of person was violated when the Danish ambassador requested the assistance of the East German police.

With regard to Article 1, the Commission affirmed that ‘authorised agents of a State, including diplomatic or consular agents, bring other persons or property within the jurisdiction of that State to the extent that they exercise authority over such persons or property. In so far as they affect such persons or property by their acts or omissions, the responsibility of the State is engaged’. In this case, the Commission was satisfied that the acts of the Ambassador complained of fell within the jurisdiction of Denmark. Once again, the Commission went on to conclude, however, that the Applicant’s substantive allegations were manifestly ill-founded and the application was ruled inadmissible.

So, what of the English resident who gets into plight and seeks the assistance of the British consulate overseas, but then passes away. Have they come under the UK’s authority and control by acts of its consular agents? At least some of the answer may be found in the sad story of British woman Lindsay Sandiford, who to date continues to reside on death row in Indonesia.

Ms Sandiford was apprehended in Bali in May 2012 by Indonesian authorities with 10 packets of cocaine found in her luggage. She was charged with narcotics trafficking offences, for which she was subsequently found guilty and sentenced to death. She appealed to the Indonesian Court of Appeal, and latterly the Supreme Court, and simultaneously brought judicial review proceedings in the UK, challenging the foreign secretary’s decision not to provide funding for such. Ms Sandiford’s judicial review in England reached the Supreme Court (although in the meantime she had secured funding by other means). The claimant relied on the ECHR, and it was argued, citing Al-Skeini and the cases referred to, that the consular assistance that Ms Sandiford had received was such as to have brought her under the authority and control of the UK’s state agents operating in Indonesia, such that the UK’s extraterritorial jurisdiction applied. Consular agents had visited her in custody and discussed her case with her, provided her with consular assistance and support, raised concerns about her welfare with the police and prison authorities, attended Court, liaised with charities and her family in relation to the obtaining of legal representation, contacted her lawyer to secure his representation, informed her of the requirement to and the time limits for, filing notice and grounds of appeal, and assisted in the obtaining of necessary Court documents.

The (English) Court of Appeal, in particular, considered carefully the Strasbourg jurisprudence. Lord Dyson MR giving the leading judgment ([2013] EWCA Civ 581) noted that the ‘mere involvement by these agents is not sufficient. What they do must amount to the exercise of authority and control. Whether this threshold is met is a fact-sensitive question.’ [45]. He distinguished X v UK on the basis that the applicant in that case was free, whereas Ms Sandiford was imprisoned, and fully under the control of the Indonesian authorities. He distinguished M v Denmark on the basis that the matters complained of in that case had occurred within the embassy, which raised a prima facie case that the applicants were under the authority and control of the Danish state.

The Supreme Court affirmed the decision of the Court of Appeal ([2014] UKSC 44), but considered arguments in respect of Article 1 extraterritorial jurisdiction more narrowly, focusing specifically on what was being complained of in the claim: a decision not to exercise a power (provision of funding), rather than the exercise of a power gone wrong. The Supreme Court determined that an omission to provide funding could not be said to bring Ms Sandiford under the UK’s Article 1 jurisdiction and suggested that some of the dicta in X v UK had been ‘too extensively phrased’ insofar as  that case suggested otherwise; to the extent that the case, decided in 1977, suggested a principle that a state could be liable for omissions of diplomatic or consular agents in not exercising a power, it should not be followed [31].

More recently in British Council v Beldica [2024] EAT 92, a decision of the Employment Appeal Tribunal, Sandiford and the Al-Skeini principles were applied in the case of an employee of the British Council in UAE who brought a complaint in the Employment Tribunal in England and Wales. She asserted that the British Council had brought her within the Article 1 jurisdiction on the basis that if, hypothetically, she had brought a claim in the UAE it would have asserted diplomatic immunity which would have nullified her action, and amounted to an exercise of authority and control by the UK State over her, by depriving her of a right to court. She succeeded in such argument in the Employment Tribunal, but failed on the British Council’s appeal. Mrs Justice Eady found firstly that there was no act or omission complained of and the hypothetical pleading of immunity was not an ‘activity in relation to the claimant’; but even if the pleading of immunity had been advanced, that would not nullify the employee’s right to access the courts in the UAE, it would be a basis for a determination within an action. To the extent that the employee claimed the Council exercised authority in those circumstances by not waiving immunity (which was in their power) such was an omission which was rejected as a means of activating the Article 1 jurisdiction on the basis of the Supreme Court’s decision in Sandiford.

It is clear, therefore, that it will only be in limited circumstances that Article 1 jurisdiction will be activated for the extraterritorial acts of diplomatic and consular agents, but the domestic cases nevertheless leave the door open for situations in which, on the right facts, the UK’s obligations are engaged. If an English resident in a foreign state were hypothetically to die, in circumstances where active assistance was being provided by consular agents, and there were aspects of that assistance which arguably contributed to the death, there would have to be a close examination as to the degree of authority and control the agents obtained by the exercise of the powers complained of. As is so often the case, the answer to whether the Article 2 duty of enhanced investigation applies is a firm, ‘it depends’.

About the Author

Before coming to the Bar, Thomas worked as a Civil Servant, including as a policy advisor at the Brexit Department. His former experience gives him an encyclopaedic knowledge of legislation, treaties and international conventions in the field of Private International Law, which he has applied to his cross-border practice, building a reputation as a go-to barrister for complex questions of jurisdiction and applicable law. He wrote the relevant chapter on such in the latest edition of the leading practitioner textbook, Saggerson on Travel Law and Litigation. His travel practice spans cross-border personal injury, commercial disputes and consumer protection.