CONCURRING OPINION OF JUDGE MOTOC

(Translation)

I voted with the majority in this case; I consider, however, that the legal reasoning should be different. The question of jurisdiction should be expanded upon in the Court ’ s judgment, notwithstanding the fact that the Russian Federation agreed to jurisdiction in this case, thus enabling the Court to avoid any reference to the historical context.

The analogy with Al-Skeini and Others v. the United Kingdom ([GC], no. 55721/07, ECHR 2011) and Jaloud v. the Netherlands ([GC], no. 47708/08 , ECHR 2014) is limited to the fact that, in our case, as in the cases cited, the Russian authorities had exercised their executive powers in accordance with an international treaty. The analogy stops there. In fact, the judgment ought to set out the reasons why the Article 1 jurisdiction, enshrined in the cases referred to by the applicants (in particular, IlaÅŸcu and Others v. Moldova and Russia ([GC], no. 48787/99, ECHR 2004 ‑ VII) and Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04, 8252/05 and 18454/06, ECHR 2012 (extracts)), was not applicable in this case.

In addition, in quoting from Jaloud the Court ought also to have referred to the issue of attribution, as contained in paragraph 154 of that judgment:

d. Attribution

154. The Court reiterates that the test for establishing the existence of “jurisdiction” under Article 1 of the Convention has never been equated with the test for establishing a State ’ s responsibility for an internationally wrongful act under general international law (see Catan , cited above, § 115). Furthermore, in Al-Skeini the Court emphasised that “whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be ‘ divided and tailored ’ (compare Banković , cited above, § 75)”,

which had put forward a concept of the jurisdiction of the Court that was closer to the criteria established by International Law Commission, while also maintaining the features of the Court ’ s lex specialis as these were enshrined in the Catan judgment.