EUROPEAN COURT OF HUMAN RIGHTS
CASE OF SARGSYAN v. AZERBAIJAN
(Application No. 40167/06)
<*> This judgment is final but may be subject to editorial revision.
In the case of Sargsyan v. Azerbaijan,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Dean Spielmann, President,
Paulo Pinto de Albuquerque,
Iulia Antoanella Motoc, judges,
and Michael O’Boyle, Deputy Registrar,
Having deliberated in private on 5 February 2014 and on 22 January 2015,
Delivers the following judgment, which was adopted on the last-mentioned date:
- The case originated in an application (No. 40167/06) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms («the Convention») by an Armenian national, Mr Minas Sargsyan («the applicant»), on 11 August 2006. The applicant died in 2009. Subsequently, the application was pursued by his widow, Ms Lena Sargsyan, born in 1936, and by his son Vladimir and his daughters Tsovinar and Nina Sargsyan, born in 1957 and 1959, and 1966 respectively. Ms Lena Sargsyan died in January 2014. Vladimir and Tsovinar Sargsyan pursued the proceedings on the applicant’s behalf.
- The applicant, who had been granted legal aid, was represented by Ms N. Gasparyan and Ms K. Ohanyan, lawyers practising in Yerevan. The Azerbaijani Government («the Government») were represented by their Agent, Mr .
- The applicant alleged, in particular, that the denial of his right to return to the village of Gulistan and to have access to his property there or to be compensated for its loss and the denial of access to his home and to the graves of his relatives in Gulistan amounted to continuing violations of Article 1 of Protocol No. 1 and of Article 8 of the Convention. Moreover, he alleged a violation of Article 13 of the Convention in that no effective remedy was available in respect to the above complaints. Finally, he alleged with a view to all complaints set out above, that he was subjected to discrimination on the basis of his ethnic origin and his religious affiliation in violation of Article 14 of the Convention.
- The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). The Armenian Government made use of their right to intervene under Article 36 § 1 of the Convention. They were represented by their Agent, Mr. G. Kostanyan.
- On 11 March 2010 a Chamber of the First Section, composed of the following judges: Christos Rozakis, Nina , Khanlar Hajiyev, Dean Spielmann, Sverre Erik Jebens, Giorgio Malinverni and George Nicolaou and also of Nielsen, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).
- The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. The President of the Court decided that, in the interests of the proper administration of justice, the present case and the case of Chiragov and Others v. Armenia (application No. 13216/05) should be assigned to the same composition of the Grand Chamber (Rules 24, 42 § 2 and 71).
- A hearing on the admissibility and merits of the application took place in public in the Human Rights Building, Strasbourg, on 15 September 2010 (Rule 59 § 3).
- On 14 December 2011 the application was declared partly admissible by a Grand Chamber consisting of judges Nicolas Bratza, Jean-Paul Costa, Christos Rozakis, Tulkens, Josep Casadevall, Nina , Corneliu , Peer Lorenzen, , Elisabet Fura, Alvina Gyulumyan, Khanlar Hajiyev, Egbert Myjer, Sverre Erik Jebens, Giorgio Malinverni, George Nicolaou and Luis Guerra, and also of Michael O’Boyle, Deputy Registrar.
- The applicant and the Government each filed further written observations (Rule 59 § 1) on the merits. In addition, third-party comments were received from the Armenian Government.
- On 12 September 2013 the Court decided to request factual information from the American Association for the Advancement of Science («the AAAS») in the framework of its «Geospatial Technologies and Human Rights Programme» (Rule A1 §§ 1 and 2 of the Annex to the Rules of Court). In November 2013 the AAAS submitted a report «High-resolution satellite imagery assessment of Gulistan, Azerbaijan 2002 — 2012, («the AAAS report»). The respondent Government objected to the disclosure of a number of images. On 10 December 2013 the President granted the request. Only those parts of the report which were subject to disclosure were taken to the case-file.
- On 3 February 2014 the Court viewed all DVDs containing footage of Gulistan and its surroundings submitted by the applicant, the respondent Government and the intervening Government and relevant parts of the AAAS report.
- A hearing on the merits took place in public in the Human Rights Building, Strasbourg, on 5 February 2014 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr C. Asgarov,Agent,
Mr M.N. Shaw, QC,
Mr G. Lansky, Counsel,
Mr O. Gvaladze,
Mr H. Tretter,
Ms T. Urdaneta Wittek, Advisers;
(b) for the applicant
Mr P. Leach,
Ms N. Gasparyan, Counsel,
Ms K. Ohanyan,
Mr A. Aloyan,
Mr V. Grigoryan, Advisers;
(c) for the Armenian Government
Mr G. Kostanyan, Agent,
Mr E. Babayan, Counsel.
- The Court heard addresses by Mr Leach, Ms Gasparyan, Mr Grigoryan, Mr Shaw, Mr Lansky and Mr Kostanyan.
- The circumstances of the case
- At the time of the demise of the USSR, the Nagorno-Karabakh Autonomous Oblast («the NKAO») was an autonomous province of the Azerbaijan Soviet Socialist Republic («the Azerbaijan SSR»). Situated within the territory of the Azerbaijan SSR, it covered 4,388 sq. km. There was at that time no common border between Nagorno-Karabakh (known as Artsakh by its Armenian name) and the Armenian Soviet Socialist Republic («the Armenian SSR»), which were separated by Azerbaijani territory, at the shortest distance by the district of Lachin, including a strip of land often referred to as the «Lachin corridor», less than ten km wide.
- According to the USSR census of 1989, the NKAO had a population of around 189,000 consisting of 77% ethnic Armenians and 22% ethnic Azeris, with Russian and Kurdish minorities.
- In early 1988 demonstrations were held in Stepanakert, the regional capital of the NKAO as well as in the Armenian capital of Yerevan, demanding the incorporation of Nagorno-Karabakh into Armenia. On 20 February 1988 the Soviet of the NKAO appealed to the Supreme Soviets of the Armenian SSR, Azerbaijan SSR and the USSR that the NKAO be allowed to secede from Azerbaijan and join Armenia. The request was rejected by the Supreme Soviet of the USSR on 23 March. In June it was also rejected by the Supreme Soviet of Azerbaijan whereas its counterpart in Armenia voted in favour of unification.
- Throughout 1988 the demonstrations calling for unification continued. The district of Lachin was subjected to roadblocks and attacks. The clashes led to many casualties and refugees, numbering hundreds of thousands on both sides, flowed between Armenia and Azerbaijan. As a consequence, on 12 January 1989 the USSR Government placed the NKAO under Moscow’s direct rule. However, on 28 November of that year, control of the province was returned to Azerbaijan. A few days later, on 1 December, the Supreme Soviet of the Armenian SSR and the Nagorno-Karabakh regional council adopted a joint resolution, «On the reunification of Nagorno-Karabakh with Armenia».
- In early 1990, following an escalation of the conflict, Soviet troops arrived in Baku and Nagorno-Karabakh, and the latter province was placed under a state of emergency. Violent clashes between Armenians and Azeris continued, however, with the occasional intervention by Soviet forces.
- On 30 August 1991 Azerbaijan declared independence from the Soviet Union. This was subsequently formalised by means of the adoption of the Constitutional Act on the State Independence of 18 October 1991. On 2 September 1991 the Soviet of the NKAO announced the establishment of the «Nagorno-Karabakh Republic» (hereinafter «the NKR»), consisting of the territory of the NKAO and the Shahumyan district of Azerbaijan, and declared that it was no longer under Azerbaijani jurisdiction. On 26 November 1991 the Azerbaijani Parliament abolished the autonomy previously enjoyed by Nagorno-Karabakh. In a referendum organised in Nagorno-Karabakh on 10 December 1991, 99.9% of those participating voted in favour of secession. However, the Azeri population boycotted the referendum. In the same month, the Soviet Union was dissolved and Soviet troops began to withdraw from the region. Military control of Nagorno-Karabakh was rapidly passing to the Karabakh Armenians. On 6 January 1992 the «NKR» having regard to the results of the referendum, reaffirmed its independence from Azerbaijan.
- In early 1992 the conflict gradually escalated into full-scale war. By the end of 1993, ethnic Armenian forces had gained control over almost the entire territory of the former NKAO as well as seven adjacent Azerbaijani regions (Lachin, Kelbajar, Jabrayil, Gubadly and Zangilan and substantial parts of Agdam and Fizuli).
- On 5 May 1994 a ceasefire agreement (the Bishkek Protocol) was signed by Armenia, Azerbaijan and the «NKR» following Russian mediation. It came into effect on 12 May.
- According to a Human Rights Watch report («Seven years of Conflict in Nagorno-Karabakh», December 1994), between 1988 and 1994 an estimated 750,000 — 800,000 Azeris were forced out of Nagorno-Karabakh, Armenia, and the seven Azerbaijani districts surrounding Nagorno-Karabakh. According to information from Armenian authorities, 335,000 Armenian refugees from Azerbaijan and 78,000 internally displaced persons (from regions in Armenia bordering Azerbaijan) have been registered.
- Current situation
- According to the Armenian Government, the «NKR» controls 4,061 sq. km of the former Nagorno-Karabakh Autonomous Oblast. While it is debated how much of the two partly conquered districts is occupied by the «NKR», it appears that the occupied territory of the seven surrounding districts in total amounts to 7,500 sq. km.
- Estimates of today’s population of Nagorno-Karabakh vary between 120,000 and 145,000 people, 95% being of Armenian ethnicity. Virtually no Azerbaijanis remain.
- No political settlement of the conflict has so far been reached. The self-proclaimed independence of the «NKR» has not been recognised by any State or any international organisation. Recurring breaches of the 1994 ceasefire agreement along the borders have led to the loss of many lives and the rhetoric of officials remains hostile. Moreover, according to international reports, tension has heightened in recent years and military expenditure in Armenia and Azerbaijan has increased significantly.
- Several proposals for a peaceful solution of the conflict have failed. Negotiations have been carried out under the auspices of the OSCE (Organization for Security and Co-operation in Europe) and its so-called Minsk Group. In Madrid in November 2007 the Group’s three Co-Chairs — France, Russia and the United States — presented to Armenia and Azerbaijan a set of Basic Principles for a settlement. The Basic Principles, which later have been updated, call, inter alia, for the return of the territories surrounding Nagorno-Karabakh to Azerbaijani control, an interim status for Nagorno-Karabakh providing guarantees for security and self-governance, a corridor linking Armenia to Nagorno-Karabakh, a future determination of the final legal status of Nagorno-Karabakh through a legally binding referendum, the right of all internally displaced persons and refugees to return to their former places of residence, and international security guarantees that would include a peacekeeping operation. The idea is that the endorsement of these principles by Armenia and Azerbaijan would enable the drafting of a comprehensive and detailed settlement. Following intensive shuttle diplomacy by Minsk Group diplomats and a number of meetings between the Presidents of the two countries in 2009, the process lost momentum in 2010. So far the parties to the conflict have not signed a formal agreement on the Basic Principles.
- On 24 March 2011 the Minsk Group presented a «Report of the OSCE Minsk Group Co-Chairs’ Field Assessment Mission to the Occupied Territories of Azerbaijan Surrounding Nagorno-Karabakh», the executive summary of which reads as follows:
«The OSCE Minsk Group Co-Chairs conducted a Field Assessment Mission to the seven occupied territories of Azerbaijan surrounding Nagorno-Karabakh (NK) from October 7 — 12, 2010, to assess the overall situation there, including humanitarian and other aspects. The Co-Chairs were joined by the Personal Representative of the OSCE Chairman-in-Office and his team, which provided logistical support, and by two experts from the UNHCR and one member of the 2005 OSCE Fact-Finding Mission. This was the first mission by the international community to the territories since 2005, and the first visit by UN personnel in 18 years.
In traveling more than 1,000 kilometers throughout the territories, the Co-Chairs saw stark evidence of the disastrous consequences of the Nagorno-Karabakh conflict and the failure to reach a peaceful settlement. Towns and villages that existed before the conflict are abandoned and almost entirely in ruins. While no reliable figures exist, the overall population is roughly estimated as 14,000 persons, living in small settlements and in the towns of Lachin and Kelbajar. The Co-Chairs assess that there has been no significant growth in the population since 2005. The settlers, for the most part ethnic Armenians who were relocated to the territories from elsewhere in Azerbaijan, live in precarious conditions, with poor infrastructure, little economic activity, and limited access to public services. Many lack identity documents. For administrative purposes, the seven territories, the former NK Oblast, and other areas have been incorporated into eight new districts.
The harsh reality of the situation in the territories has reinforced the view of the Co-Chairs that the status quo is unacceptable, and that only a peaceful, negotiated settlement can bring the prospect of a better, more certain future to the people who used to live in the territories and those who live there now. The Co-Chairs urge the leaders of all the parties to avoid any activities in the territories and other disputed areas that would prejudice a final settlement or change the character of these areas. They also recommend that measures be taken to preserve cemeteries and places of worship in the territories and to clarify the status of settlers who lack identity documents. The Co-Chairs intend to undertake further missions to other areas affected by the NK conflict, and to include in such missions experts from relevant international agencies that would be involved in implementing a peace settlement.»
- On 18 June 2013 the Presidents of the Co-Chair countries of the Minsk group issued a joint statement on the Nagorno-Karabakh conflict:
«We, the Presidents of the OSCE Minsk Group Co-Chair countries — France, the Russian Federation, and the United States of America — remain committed to helping the parties to the Nagorno-Karabakh conflict reach a lasting and peaceful settlement. We express our deep regret that, rather than trying to find a solution based upon mutual interests, the parties have continued to seek one-sided advantage in the negotiation process.
We continue to firmly believe that the elements outlined in the statements of our countries over the last four years must be the foundation of any fair and lasting settlement to the Nagorno-Karabakh conflict. These elements should be seen as an integrated whole, as any attempt to select some elements over others would make it impossible to achieve a balanced solution.
We reiterate that only a negotiated settlement can lead to peace, stability, and reconciliation, opening opportunities for regional development and cooperation. The use of military force that has already created the current situation of confrontation and instability will not resolve the conflict. A renewal of hostilities would be disastrous for the population of the region, resulting in loss of life, more destruction, additional refugees, and enormous financial costs. We strongly urge the leaders of all the sides to recommit to the Helsinki principles, particularly those relating to the non-use of force or the threat of force, territorial integrity, and equal rights and self-determination of peoples. We also appeal to them to refrain from any actions or rhetoric that could raise tension in the region and lead to escalation of the conflict. The leaders should prepare their people for peace, not war.
Our countries stand ready to assist the sides, but the responsibility for putting an end to the Nagorno-Karabakh conflict remains with them. We strongly believe that further delay in reaching a balanced agreement on the framework for a comprehensive peace is unacceptable, and urge the leaders of Azerbaijan and Armenia to focus with renewed energy on the issues that remain unresolved.»
- The applicant and the property allegedly owned by him in Gulistan
- The applicant, an ethnic Armenian, states that he and his family used to live in the village of Gulistan in the Shahumyan region of the Azerbaijan SSR. He claims to have had a house and outhouses there.
- Geographically, Shahumyan shared a border with the NKAO and was situated to the north of it. The region did not form part of the NKAO, but was later claimed by the «NKR» as part of its territory (see paragraph 19 above). According to the applicant, 82% of the population of Shahumyan had been ethnic Armenians prior to the conflict.
- In February 1991 Shahumyan was abolished as a separate administrative region and was formally incorporated into the present-day Goranboy region of the Republic of Azerbaijan.
- In April-May 1991 the USSR Internal Forces and the special-purpose militia units («the OMON») of the Azerbaijan SSR launched a military operation with the stated purpose of «passport checking» and disarming local Armenian militants in the region. However, according to various sources, the government forces, using the official purpose of the operation as a pretext, expelled the Armenian population of a number of villages in the Shahumyan region, thus forcing them to leave their homes and flee to Nagorno-Karabakh or Armenia. The expulsions were accompanied by arrests and violence towards the civilian population. In 1992, when the conflict escalated into a full-scale war, Shahumyan region came under attack by Azerbaijani forces.
- The parties’ submissions and evidence presented by them
- The parties’ positions differ in respect of the applicant’s residence and possessions in Gulistan.
(a) The applicant
- The applicant maintained that he had lived in Gulistan for most of his life until his forced displacement in 1992. In support of this claim he submitted a copy of his former Soviet passport issued in 1979, from which it can be seen that the applicant was born in Gulistan. He also submitted his marriage certificate, which shows that he and his wife, who was also born in Gulistan, got married there in 1955. In addition, the applicant asserted that, having grown up in Gulistan, he left for some years to complete his military service and to work in the town of Sumgait. A few years after his marriage he returned to Gulistan where he lived until June 1992.
- The applicant submitted a copy of an official certificate («technical passport») when he lodged the application. According to that document, dated 20 May 1991, a two-storey house in Gulistan and outhouses of a total area of 167 sq. m and 2,160 sq. m of land were registered in the applicant’s name. Furthermore he submitted a detailed plan of the main house.
- According to the technical passport, of the 167 sq. m on which the house stood, 76 sq. m were occupied by the main house and 91 by various outhouses including a cow-shed. Of the 2,160 sq. m of land 1,500 were a fruit and vegetable garden. The document also contains information of a technical nature (for instance the building materials used) concerning the main house and the outhouses.
- The applicant explained that he had obtained the land by permission of the Village Council to divide his father’s plot of land between him and his brother. The decision was recorded in the Village Council’s register. With the help of relatives and friends, he and his wife built their house on that plot of land in 1962 — 63. Their four children grew up in the house and he and his wife continued to live there until they had to flee in June 1992. Furthermore, the applicant explained that he had been a secondary school teacher in Gulistan and had earned his living partly from his salary and partly from farming and stock-breeding on his land while his wife had been working at the village’s collective farm since the 1970s.
- In addition to the technical passport and the plan of the house mentioned above, the applicant submitted photos of the house and written statements dating from August 2010 from two former officials of the Village Council, Ms Khachatryan and Mr Meghryan. The former states that she was the secretary of the Village Council from 1952 to 1976. She confirms that the Village Council allowed the applicant to divide his father’s plot of land between himself and his brother. Both, Ms Khachatryan and Mr Meghryan who states the he was a member of the Board of the Village Council for some years in the 1970s, claim that entries about the allotment of land to villagers were made in the registration book of the Village Council. A number of further written statements from May 2010 from family members (including the applicant’s wife, two of their children and his son-in-law), former neighbours and friends from Gulistan provide a description of Gulistan and confirm that the applicant was a secondary school teacher and had a plot of land and a two-storey house in the village. They also confirm that a number of outhouses and a fruit and vegetable garden belonged to the applicant’s house, where he and his family lived until June 1992.
- The applicant described that Shahumyan region was subjected to a blockade by the Azerbaijani Government in the early 1990s. In 1992 the armed forces started attacking the region. In June 1992 Gulistan came under direct attack by Azerbaijani forces. From 12 to 13 June 1992 the village was heavily bombed. The population of the village, including the applicant and his family members, fled in fear for their lives. The above-mentioned statements of a number of witnesses also provide a description of the blockade of Shahumyan region during the conflict, of the attack on the village and the flight of its inhabitants.
- The applicant and his family fled to Armenia. Subsequently, the applicant and his wife lived as refugees in Yerevan. In 2002 the applicant obtained Armenian citizenship. He was seriously ill from 2004 and died on 13 April 2009 in Yerevan.
(b) The respondent Government
- The respondent Government submitted that it could not be verified whether the applicant had actually lived in Gulistan and had any possessions there. For the period from 1988 to the present date, the relevant departments of the Goranboy region did not possess any documentation concerning the plot of land, house or other buildings allegedly owned by the applicant. Moreover, certain archives of the former Shahumyan region, including the Civil Registry Office and the Passport Office, had been destroyed during the hostilities. No documents relating to the applicant were available in the Goranboy regional archives today.
- In support of their position the Government submitted a number of documents, namely: a statement, dated 22 July 2007, by Colonel Maharramov, Head of the Goranboy Regional Police Department confirming that the archives of the Civil Registry Office and of the Passport Office of the former Shahumyan Region had been destroyed during the conflict; a letter from the State Registry Service for Immovable Property of 31 July 2007 according to which the relevant Regional Department’s Archives did not contain any document concerning the applicant’s alleged property rights; a statement dated 5 March 2012 by Mr Mammadov, Chairman of the State Land and Mapping Committee of the Republic of Azerbaijan, according to whom only the Executive Committee of the Soviet of People’s Deputies of the Districts and Cities had been empowered to allocate land under the Land Code of the Azerbaijan SSR.
- The situation obtaining in Gulistan
- The parties’ positions also differ in respect of the current situation obtaining in Gulistan. The Armenian Government, as a third-party intervener, also made submissions on the issue.
- The parties’ submissions
(a) The applicant
- Regarding the situation in Gulistan, the applicant asserted that the Republic of Azerbaijan had control over the village and in particular that they had positions in the village itself and on its outskirts. In his view there was nothing to prove that Gulistan was on the Line of Contact (LoC) between Azerbaijani and «NKR» forces as claimed by the respondent Government.
- In the proceedings prior to the admissibility decision, the applicant submitted a written statement from an anonymous senior officer of the «NKR» armed forces dated 11 August 2010, according to whom Gulistan was under the de facto control of Azerbaijani military forces (see paragraphs 51 and 58 below). Moreover, the applicant asserted that fellow villagers had tried to return to Gulistan on several occasions but had been unable to enter the village as they would have risked to be shot at by Azerbaijani forces.
(b) The respondent Government
- The Government accepted throughout the proceedings that Gulistan was located on the internationally recognized territory of the Republic of Azerbaijan.
- In their submissions prior to the admissibility decision, the Government asserted that Gulistan was physically on the LoC between Azerbaijani and Armenian forces, which had been established by the ceasefire agreement of May 1994. The village was deserted and the LoC was maintained by the stationing of armed forces on either side and by the extensive use of landmines. It was thus impossible for the respondent Government to exercise any control over the area or to have any access to it.
- In their submissions after the admissibility decision the Government stated that they did not exercise sufficient control over the village. Referring to the statements of a number of military officers who had served in the Goranboy region and had made statements on the situation in Gulistan (see, paragraph 62 below) they submitted in particular that the village, situated in a «v» shaped valley on the northern bank of the river Inzachay was on the LoC, meaning that it was surrounded by armed forces of Azerbaijan on the one side (in the north and east) and of Armenia on the other side (in the south and west). Armenian forces held strategically advantageous positions on a steep, forested slope south of the river, while Azerbaijani positions on the north bank of the river were situated in lower, relatively open territory. The Government asserted that, as a matter of fact, Gulistan was not under the effective control of either side. It was a contested area and constituted a dangerous environment. The village and its surroundings were mined. Violations of the ceasefire agreement occurred frequently. There were no safe buildings in the area as the village had been destroyed and deserted.
- In their pleadings at the hearing of 5 February 2014, the Government underlined that Gulistan was exposed to fire from Armenian military positions situated across the river on a steep slope. In addition, they referred to the AAAS report on Gulistan (see paragraphs 74 and 75 below), noting that it confirmed, apart from the fact that Gulistan was on Azerbaijani territory, that the area around Gulistan was mountainous and was the object of sustained military activity and that the village had been destroyed. They maintained that the area was mined and inaccessible to any civilian.
(c) The Armenian Government, third-party intervener
- The intervening Government maintained throughout the proceedings that the respondent Government had full, effective control over Gulistan.
- At the hearing of 15 September 2010 they had contested the respondent Government’s assertion that Gulistan was on the LoC. Referring to the written statement of 11 August 2010 by an anonymous senior officer of the «NKR» armed forces serving near Gulistan which had been submitted by the applicant, the Agent of the Armenian Government had declared that he had been personally present when the statement had been made and confirmed its correctness. On the basis of this statement, the Armenian Government asserted that in the area at issue, the dividing line between the armed forces of the «NKR» and the Republic of Azerbaijan was a gorge through which the river Indzachay was flowing. Gulistan was situated north of the riverside and was under the control of Azerbaijani armed forces who had military positions in the village itself and on its outskirts, while «NKR» forces were stationed on the other side of the gorge. They also referred to the DVD containing footage of the village submitted to the Court by the applicant in 2008 (see paragraph 56 below) claiming that the person who can be seen walking between the houses, was an Azerbaijani soldier. The Armenian Government maintained that it was impossible for «NKR» forces or any Armenian to have access to the village.
- In their submissions following the admissibility decision, the Armenian Government disclosed the identity of the senior «NKR» officer at the Court’s request. The officer in question is Colonel Manukyan of the «NKR» Defence Army. Moreover, the Armenian Government submitted that their Agent, Mr Kostanyan, had obtained permission from the «NKR» authorities and had visited the territory near Gulistan in May 2012. He had obtained DVD material and recorded interviews with three «NKR» officers describing the situation on the ground in and near Gulistan (see paragraph 71 below). The Armenian Government also replied to the Court’s question concerning their assertion made at the hearing of 15 September 2010 that the man walking between the ruins on the DVD submitted by the applicant in 2008 was an Azerbaijani soldier: While stating that they were not in a position to comment on that man’s identity, they referred to statements of the «NKR» military officers according to whom there were Azerbaijani military positions in Gulistan, while there was no presence of civilians.
- At the hearing of 5 February 2014 the Armenian Government repeated their description of the situation pertaining in Gulistan. Moreover, they asserted that Azerbaijani military presence in the area had also been confirmed by the AAAS report.
- Evidence submitted by the parties
- The parties have submitted extensive documentary material in support of their respective positions. The following paragraphs contain a short description of the main items of evidence.
(a) The applicant
(i) Map of Gulistan
- A map of Gulistan and its surroundings: It appears to be a copy of an official map with names in Azeri, showing the entire village on the north bank of a river (Indzachay). The alleged positions of the Azerbaijani forces are indicated as follows: one is in the middle of the village, a few more are on its northern edge, others are also spread out on the north bank of the river but are further away, most of them apparently on the heights around the village.
- A DVD, submitted with his observations of 21 February 2008, containing footage of Gulistan and its surroundings. The village is situated on a hillside. Many of the houses are in ruins, while a few still have intact roofs. Smoke is rising from some chimneys. At one point a man walking between the ruins appears. On a hillside situated in some distance from the village, constructions are to be seen which appear to be firing positions.
(iii) Statements by «NKR» officials and by former villagers from Gulistan
- A letter by the «Minister of Defence of the NKR» of 14 February 2008 describing the situation on the ground in Gulistan and claiming in particular that the Azerbaijani Armed Forces had several posts and shooting points right in the village.
- A statement dated 11 August 2010 by a senior officer of the «NKR» forces serving in a military position near the village of Gulistan since 2005 (see the summary of the statement at paragraph 51 above). The statement was accompanied by a hand-drawn map of Gulistan and its surroundings and a number of photos showing the area. The officer, who had initially remained anonymous, is Colonel Manukyan from the «NKR» Defence Army.
A statement of Mr Aloyan, assistant to the representative of the applicant, who recorded the statement by the «NKR» officer on the spot, i.e. at the military unit near Gulistan, confirming the contents of that officer’s statement and that the photos were taken from the «NKR» military position.
A Statement of Mr Kostanyan, Agent of the Armenian Government, in whose presence the senior «NKR» officer made his statement at his military unit close to Gulistan.
- Statements dated March 2012 from three former villagers of Gulistan who claimed that they had unsuccessfully tried to return to the village of Gulistan between 2002 and 2004. They claim to have approached the area on the «NKR» side of the ceasefire line, two of them state that they were able to look down on the village from the height of Napat, but were prohibited from moving any further by the «NKR» soldiers accompanying them due to the risk of sniper fire from the opposing forces. One of them states that with the aid of binoculars, he was able to see a number of entrenchments in the village and a soldier standing there.
(b) The respondent Government
- A map of Gulistan and its surroundings. The map shows the entire village on the north bank of the river Indzachay, the Azerbaijani military positions are also on the north bank of the river mostly on the heights around the village. The «NKR» positions are on the south bank of the river the closest being right opposite the village.
A map of Nagorno-Karabakh submitted by the Armenian Government in Chiragov and Others v. Armenia (cited above). The map shows Gulistan on the very border of the «NKR» to the north of a river.
A map of Azerbaijan published in 2006 by the State Land and Cartography Committee of the Republic of Azerbaijan. The map shows Gulistan on the very border of the area occupied by the «NKR». On the map the occupied areas are shaded and surrounded by a red line; Gulistan is on that red line but outside the shaded area, to the north of a river.
- Two DVDs containing footage of Gulistan and its surroundings, (one submitted in September 2008, the other in July 2012). The first shows the village in a hilly landscape, with most houses in ruins, plus some constructions on the crest of a hill which appear to be firing positions. The second again shows the village (houses in ruins and destroyed agricultural machines) and the surrounding landscape and is accompanied by a text explaining in particular that there is no habitation in the village, that the Armenian positions are on a forested slope and control the village with large calibre guns, while Azerbaijani positions are at a distance of some 2.5 km and can only visually control the village.
(iii) Statements from Azerbaijani military officers, officials and villagers from neighbouring villages
- Statements made in March 2012 by six Azerbaijani army officers, Colonel Babayev, who served in a military unit in Goranboy region from 1994 to 1997, and Colonel-lieutnants Abdulov, Mammadov, Ahmadov, Abbasov, and Huseynov who served in military units in Goranboy region at various periods between 1999 and 2009 and describe the situation on the ground in Gulistan as follows:
— Gulistan is on the north bank of the river Indzachay;
— Azerbaijani military positions are on the north bank of the river in the east and north-east of Gulistan settlement, situated in lowlands, at distances between 1 and 3 km from the destroyed village;
— Armenian military positions are on the south bank of the river in the west and south-west of Gulistan settlement, situated on strategically better upland positions (steep slopes covered with forest). The estimates given by the officers in respect of the distance at which the nearest Armenian positions are located vary between 200 — 300 m and 1 km;
— ceasefire violations by the Armenian forces are frequent;
— they contest the Armenian Government’s assertion that some of the houses in the village have been repaired and are being used as military positions by the Azerbaijani forces;
— the Azerbaijani positions and the village itself are within shooting range of the Armenian positions (fire with large-calibre machine guns); military staff can therefore not move freely in the area but only on designated routes;
— there are no civilians in the village;
— most of the buildings (some 100 houses) in the village were destroyed during the hostilities. As the village has been deserted since 1992 houses have decayed, roofs have collapsed and trees are now growing inside the destroyed buildings. There are currently no habitable buildings left; after the hostilities, Armenian forces mined the territory of the settlement, these mines are sometimes triggered by animals;
— Colonel-lieutenant Abdulov states to have observed movements of Armenian military in the ruins in the south part of Gulistan settlement, Colonel-lieutenant Mammadov claims to have seen Armenian military servants moving from their positions towards the river. Colonel-lieutenants Abbasov and Huseynov state that they observed Armenian military forces destroying buildings and using the material for their fortifications.
- Information by the Azerbaijani Ministry of Defence covering the period from 2003 to 2010 on ceasefire violations indicating an increase from 2008 (20 in 2008, 35 in 2009 and 52 in 2010) and casualties in the area of Gulistan as a result of mine explosions (5 soldiers killed on 5 August 2003) or violations of the ceasefire (one soldier killed on 25 February 2005).
- A letter by the Director of the National Agency for Mine Action dated 12 July 2010 stating that Gulistan village in the Goranboy region was «defined as a territory with an extensive mine and unexploded ordinance (UXO) contamination».
- Statements made in March 2012 by eight villagers living in neighbouring settlements, Meshali village and Yukhari Aghjakand town. They describe that the village of Gulistan is deserted and that the surroundings are mined and regularly come under fire from the Armenian positions.
(iv) Press releases
- Two press releases of October 2006 from an Armenian source relating to an OSCE mission monitoring the border line between Nagorno-Karabakh and Azerbaijan near village Gulistan.
- Numerous press releases from the Azeri Press Agency issued between June 2010 and May 2012 mentioning ceasefire violations in various areas including the area of Gulistan. The text most frequently used by these press releases reads as follows: «Armenian Armed Forces fired on the opposite Azerbaijani Armed Forces from posts near Gulistan village» or «…from posts in nameless upland near Gulistan village» or «enemy units fired on the positions of Azerbaijani Armed Forces from the posts […] near Gulistan village of Azerbaijan’s Goranboy region». One of these press releases, dated 3 March 2012 reports that «Azerbaijani lieutenant Gurban Huseynov has stricken a mine in Gulistan village in the frontline of Goranboy region. Consequently, he lost his leg».
- A statement by International Campaign to Ban Landmines of 20 September 2013 expressing concern about the increased placement of anti-personnel landmines by the Nagorno-Karabakh authorities along the Armenian-Azerbaijani line of contact east and north of the disputed territory.
(c) The Armenian Government, third-party intervener
- A map of Gulistan and its surroundings, which shows the entire village on the north bank of the river Idzachay. The Azerbaijani positions are also on the north bank of the river and very close to the village (to the east and west of it and on its northern edge) while the «NKR» positions are on the south bank of the river, the closest being just opposite the village.
- A DVD, submitted in July 2012, containing footage of Gulistan and its surroundings and interviews taken on the spot by Government Agent, Mr Kostanyan, with three «NKR» army officers serving in the military unit near Gulistan (for their contents see paragraph 71 below). It shows the village, which most houses in ruins, and the landscape around it. Towards the end of the video, a herd of sheep and some persons can be seen moving behind the destroyed village.
(iii) Statements by «NKR» military officers
- Transcripts of the interviews recorded in May 2012 with Unit commander Sevoyan, Sergeant Petrosyan and officer Vardanyan, serving in the «NKR» military unit located near Gulistan. They describe the situation on the ground as follows:
— the Azerbaijani military forces have positions in the village and sometimes perform combat duties there, but their permanent location point is in the rear;
— there are no civilians in the village;
— there are no mines in the village itself but the area surrounding it has been mined by the Azerbaijani forces (they notice that from time to time animals trigger a mine);
— sometimes there are ceasefire violations by the Azerbaijani side; if they are negligent they risk to be shot at from the Azerbaijani positions;
— it happened several times that former villagers of Gulistan came to the area wishing to visit their village. Due to dangers from snipers or combat weapons’ fire from the Azerbaijani side, they did not allow them to approach the village.
- Evidence obtained by the Court
- On 12 September 2013 the Court requested the American Association for the Advancement of Science («the AAAS») in the framework of its «Geospatial Technologies and Human Rights» programme to provide a report on the following issues: the location of military positions such as trenches and fortifications in and around the village of Gulistan, for the period between the entry into force of the Convention in respect of Azerbaijan (15 April 2002) to the present, and also on the state of destruction of buildings in the village and of the village’s cemeteries at the time of the Convention’s entry into force (15 April 2002).
- The report «High-resolution satellite imagery assessment of Gulistan, Azerbaijan, 2002 — 2012» («the AAAS report») was submitted to the Court in November 2013. On the basis of interpretation of high-resolution satellite images from 2005, 2009 and 2012 obtained from public sources, the report provides the following information.
- In respect of military structures it notes that there are trenches and revetments in the village and adjacent to it in the 2005 and 2009 images, a build-up having taken place in the intervening period, while after 2009 trenches seem to have fallen into disuse, as is shown by the fading visual signature of these trenches in the 2012 image. In the area surrounding Gulistan military activity was apparent. Military build-up in the 2005 to 2009 period, concerning trenches, revetments, military buildings, vehicles and vehicle tracks was followed by continued military development in the region over the period 2009 to 2012, but of a different type, in that trenches and revetments fell into disuse, while military buildings and vehicle presence continued to increase.
- In respect of the destruction of buildings, the report indicates that most of the approximately 250 houses in the village are destroyed, the term «destroyed» meaning that they are no longer intact. The report notes that building degradation and vegetation overgrowth obscured building footprints and made structure counts difficult. While in 2005 some 33 buildings remained intact, there were only 17 in 2009 and 13 in 2012. For most of the destroyed buildings outer and interior walls have been preserved while roofs have collapsed. While the state of the buildings suggests burning as a possible cause of destruction, the report underlines that the cause of the destruction could not be determined via satellite imagery, in particular, it was not always possible to state whether or not buildings had been destroyed deliberately. No cemeteries were identifiable on the satellite imagery. The report suggests that this might be due to vegetation overgrowth.