Mansur PAD and Others Vs.Turkey

THE LAW
A. Whether the victims came within the jurisdiction of Turkey
1. Arguments submitted to the Court
(a) The applicants
48. Relying on the Court’s established case-law relating to the exceptional circumstances capable of extending jurisdiction extraterritorially, the applicants asserted that the Turkish Government should be held accountable for violations of the Convention rights and freedoms of their relatives who were found to have been under the authority and control of the Turkish army forces operating within the territory of Iran (they cited, among other authorities, Issa and Others v. Turkey, no. 31821/96, § 71, 16 November 2004).
49. The applicants also claimed that for the purposes of establishing jurisdiction it was not incumbent upon them to prove beyond reasonable doubt that the respondent Government’s agents had been operating, whether lawfully or unlawfully, within the territory of Iran because the burden-of-proof test established in the Issa and Others judgment applied only to exceptional cases of extraterritorial jurisdiction where a Contracting State had effective control of an area situated outside its national territory, and not to the circumstances of the present case. Should the Court disagree with this argument, the burden of proof should be lowered, at the very least, to a balance of probabilities or, alternatively, the onus fell on the Government to rebut the applicants’ assertions, given that the Government were in possession of information regarding the movement of their troops.
50. In the applicants’ opinion, the usual test and burden imposed by the Court would be tantamount to imposing upon them the duty to prove beyond reasonable doubt the merits of their case as a precondition to establishing jurisdiction. In reality, if they could show beyond reasonable doubt that Turkish troops had been present at the location where the detention and killings had occurred, which was arguable in the instant case given the wealth of eyewitness and other evidence, it would be highly unlikely that they would fail on the merits.

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Tags: 13, 14, 18 and 34 of the Convention, 3, 5, Articles 2, commit unintentional homicide, deprive an individual unlawfully of his or her lib, individual to torture or ill-treatment, intentional homicide