PARTLY DISSENTING OPINION OF JUDGE LOUCAIDES

I would first like to reiterate the view which I expressed in Assanidze v. Georgia ([GC] no. 71503/01, ECHR 2004 - II ) as regards the notion of “jurisdiction” within the meaning of Article 1 of the Convention, dealt with in paragraphs 310 to 314 and 319 of the judgment in the present case.

“To my mind ' jurisdiction ' means actual authority, that is to say the possibility of imposing the will of the State on any person, whether exercised within the territory of the High Contracting Part y or outside that territory. Therefore, a High Contracting Party is accountable under the Convention to everyone directly affected by any exercise of authority by such Party in any part of the world. Such authority may take different forms and may be legal or illegal. The usual form is governmental authority within a High Contracting Party ' s own territory, but it may extend to authority in the form of overall control of another territory even though that control is illegal ( see Loizidou v. Turkey ( p reliminary o bjection s ) , judgment of 23 March 1995, Series A no. 310), notably occupied territories ( see Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001-IV). It may also extend to authority in the form of the exercise of domination or effective influence through political, financial, military or other substantial support of a g overnment of another State. And it may, in my opinion, take the form of any kind of military or other State action on the part of the High Contracting Party concerned in any part of the world (see, by way of contrast , Bankovic and Others v. Belgium and Others (dec.) [GC], no. 52207/99, ECHR 2001-XII , cited in the judgment).

The test should always be whether the pers on who claims to be within the ' jurisdiction ' of a High Contracting Party to the Convention, in respect of a particular act , can show that the act in question was the result of the exercise of authority by the State concerned. Any other interpretation excluding responsibility of a High Contracting Party for acts resulting from the exercise of its State authority would lead to the absurd proposition that the Convention lays down obligations to respect human rights only within the territory under the lawful or unlawful physical control of such Party and that outside that context, leaving aside certain exceptional circumstances (the existence of which would be decided on a case - by - case basis), the State Party concerned may act with impunity contrary to the standards of behaviour set out in the Convention. I believe that a reasonable interpretation of the provisions of the Convention in the light of its object must lead to the conclusion that the Convention provides a code of behaviour for all High Contracting Part ies whenever they act in exercise of their State authority with consequences for individuals . ”

I wish to expand on my aforesaid position by adding that a State may also be accountable under the Convention for failure to discharge its positive obligations in respect of any person if it was in a position to exercise i ts authority directly or even indirectly over that person or over the territory where that person is.

In the light of the above and the facts and circumstances of the case as set out in the judgment, I agree with the majority that the applicants come within the “jurisdiction” of the Russian Federation for the purposes of Article 1 and that its responsibility is engaged with regard to the acts complained of. As rightly pointed out in the judgment , it has been proved “that the ' MRT ' , set up in 1991- 92 with the support of the Russian Federation, vested with organs of power and its own administration, 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 thanks to the military, economic, financial and political support given to it by the Russian Federation” (paragraph 392 of the judgment).

However I disagree with the majority that the applicants come under the “jurisdiction” of Moldova and that it is responsible for failure to discharge its positive obligations to take sufficient effective and appropriate measures to secure the applicants ' Convention rights. There is nothing to show that Moldova actually had any direct or indirect authority over the territory where the applicants were detained or over the applicants themselves. Moldova was in no way responsible for the illegal detention of the applicants or for the continuation of such detention. There is nothing to show that Moldova acquiesced in or encouraged the existence of the illegal regime which at all material times (with the support of Russia as already explained) exercised actual authority in the area where the violations occurred and where the applicants were detained.

None of the factors set out by the majority in support of their conclusion that Moldova had jurisdiction over the applicants could possibly, in my opinion, be considered as amounting to an exercise or avoidance of exercising effective authority in respect of the applicants. In this respect I also associate myself with the approach of Sir Nicolas Bratza as set out in paragraphs 15 to 26 of his partly dissenting opinion.

In any case , to conclude that there is “jurisdiction” over certain persons for the purposes of the Convention simply because the g overnment concerned ha s failed to take judicial, political, diplomatic and economic measures or any other of the measures cited by the majority, with the object of securing the Convention rights of the applicants even though actual authority over these persons on the part of the g overnment was lacking, would be stretching the concept of “jurisdiction” to an unrealistic and absurd extent. In other words it would, in my opinion, be a fallacy to accept that a High Contracting Party to the Convention has “jurisdiction” over any person outside its authority simply because it does not take the political or other measures mentioned in general terms by the majority. Such a position would in my view lead, for instance, to the illogical conclusion that all High Contracting Parties to the Convention would have jurisdiction and responsibility for violations of the human rights of persons in any territory of a High Contracting Party, including their own , but outside their actual authority (either de facto or de jure or b oth depending on the territory), merely by virtue of not pressing to secure the Convention rights in that territory through action against the State which does in reality exercise such authority over these persons. I believe that the interpretation of a treaty should avoid a meaning which leads to a result which is manifestly absurd.

In the Banković and Others decision (with which I personally disagree) , the Grand Chamber of the Court found that the bombing of buildings in Belgrade resulting in the killing of sixteen civilians was an extraterrit orial act outside the “jurisdiction” of the High Contracting Parties to the Convention responsible for such bombing and for that reason the relevant complaint of the relatives of the deceased was dismissed as inadmissible. It seems to me incomprehensible and certainly very odd for a High Contracting Party to escape responsibility under the Convention on the ground that the throwing of bombs from its aeroplanes over an inhabited area in any part of the world does not bring the victims of such bombing within its “jurisdiction” (that is to say, authority) while a failure on the part of such Party “to take all the measures in [its] power whether political diplomatic, economic, judicial or other me asures ... to secure the rights guaranteed by the Convention to those formally [ de jure ] within its jurisdiction” but in actual fact outside its effective authority ascribes jurisdiction to that State and imposes on it positive duties towards them.

At all events , I believe that the authorities of Moldova have in fact done everything that could reasonably be expected from them in the particular circumstances of this case. It would be unrealistic and unfair to attribute to them any responsibility for the situation complained of by the applicants.