- The Court’s assessment
- The Court has already found continuing violations of Article 1 of Protocol No. 1 and Article 8 of the Convention. The applicant’s complaints are therefore “arguable” for the purposes of Article 13 (see for instance, and Others, cited above, § 163).
- The applicant’s complaint under this head reflects to a large extent the same or similar elements as those already dealt with in the context of the objection concerning the exhaustion of domestic remedies. In addition the applicant argued that the Court’s case-law contained indications as to the specific requirements which remedies designed to address violations of refugees’ or displaced persons’ rights to property and home should fulfil in order to be effective.
- The Court reiterates its above finding that the respondent Government have failed to discharge the burden of proving the availability of a remedy capable of providing redress to the applicant in respect of his Convention complaints and offering reasonable prospects of success (see paragraph 119 above).
- Furthermore, the Court observes that its findings under Article 1 of Protocol No. 1 and of Article 8 above relate to the respondent State’s failure to create a mechanism which would allow the applicant, and others in a comparable situation, to have his rights in respect of property and home restored and to obtain compensation for the losses suffered. The Court therefore perceives a close link in the present case between the violations found under Article 1 of Protocol No. 1 and Article 8 of the Convention on the one hand and the requirements of Article 13 on the other.
- In conclusion, the Court finds that there has been and continues to be no available effective remedy in respect of the violation of the applicant’s rights under Article 1 of Protocol No. 1 and under Article 8 of the Convention.
- Accordingly there has been a continuing breach of Article 13 of the Convention.
VII. Alleged violation of Article 14 of the Convention
- Finally, the applicant complained with a view to his complaints set out above that he had been subjected to discrimination on the basis of his ethnic origin and religious affiliation. He relied on Article 14 of the Convention, which provides as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
- The parties’ submissions
- The applicant
- In the applicant’s view the discriminatory treatment of Armenians was a fundamental aspect of the case. He maintained that only ethnic Armenians had been forced by the Azerbaijani military to flee their property and homes in the context of the Nagorno-Karabakh conflict. They were still unable to return or to make use of any effective remedies. While internally displaced Azerbaijanis benefitted from Government assistance, nothing whatsoever had been done for Armenians in the applicant’s position.
- The respondent Government
- The Government rejected the applicant’s allegation that he had been subjected to discriminatory measures on account of his ethnic origin or religious affiliation. As regards his return to Gulistan, they asserted that the security situation in the area did not allow the presence of any civilian in the area. Finally, the Government claimed that they had sufficiently shown their political will to settle the conflict in a manner which would allow all refugees and internally displaced to return to their former places of residence.
- The Armenian Government, third-party intervener
- The Armenian Government agreed with the applicant, underlining that his complaint had to be seen against the background of the Nagorno-Karabakh conflict at large: only ethnic Armenians were subjected to forced displacement from Azerbaijan and the denial of the applicant’s right to return was also related to his ethnic origin.
- The Court’s assessment
- The Court considers that the applicant’s complaints under Article 14 of the Convention amount essentially to the same complaints which the Court has already examined under Article 1 of Protocol No. 1 and under Articles 8 and 13 of the Convention. Having regard to its findings of violations in respect of these Articles the Court considers that no separate issue arises under Article 14 (see, for instance, Cyprus v. Turkey, cited above, § 199; Xenides-Arestis v. Turkey, No. 46347/99, § 36, 22 December 2005; Catan and Others, cited above, § 160).
VIII. Application of Article 41 of the Convention
- Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
- The applicant requested first and foremost restitution of his property, including the right to return to his property and home in Gulistan. Furthermore, he suggested that it might be appropriate for the Court to indicate general measures under Article 46 of the Convention to the Government. The applicant claimed compensation for pecuniary damage in a total amount of 374,814 euros (EUR). Furthermore, he claimed non-pecuniary damage in a total amount of EUR 190,000. Finally, he claimed reimbursement of the costs and expenses incurred in the proceedings before the Court.
- The Government contested these claims.
- The Court, having regard to the exceptional nature of the case, considers that the question of the application of Article 41 is not ready for decision. That question must accordingly be reserved and the subsequent procedure fixed, having due regard to any agreement which might be reached between the Government and the applicant.
FOR THESE REASONS, THE COURT
- Dismisses, by fifteen votes to two, the respondent Government’s preliminary objection of non-exhaustion of domestic remedies;
- Holds, by fifteen votes to two, that the matters complained of are within the jurisdiction of the Republic of Azerbaijan and that the respondent Government’s responsibility is engaged under the Convention and
dismisses the respondent Government’s preliminary objection concerning lack of jurisdiction and responsibility;
- Dismisses, by fifteen votes to two, the respondent Government’s preliminary objection that the Court lacked competence ratione temporis in so far as the applicant’s complaints relate to his house;
- Dismisses, by fifteen votes to two, the respondent Government’s preliminary objection that the applicant lacked victim status in so far as his complaints related to his relatives’ graves;
- Holds, by fifteen votes to two, that there has been a continuing violation of Article 1 of Protocol No. 1 to the Convention;
- Holds, by fifteen votes to two, that there has been a continuing violation of Article 8 of the Convention;
- Holds, by fifteen votes to two, that there has been a continuing violation of Article 13 of the Convention;
- Holds, by sixteen votes to one that no separate issue arises under Article 14 of the Convention;
- Holds, by fifteen votes to two, that the question of the application of Article 41 is not ready for decision; and consequently,
(a) reserves the said question in whole;
(b) invites the respondent Government and the applicant to submit, within twelve months from the date of notification of this judgment, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach;
(c) reserves the further procedure and delegates to the President of the Court the power to fix the same if need be.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 16 June 2015.
Dean SPIELMANN President
Michael O’BOYLE Deputy Registrar
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) concurring opinion of Judge Ziemele;
(b) concurring opinion of Judge Yudkivska;
(c) partly dissenting opinion of Judge Gyulumyan;
(d) dissenting opinion of Judge Hajiyev;
(e) dissenting opinion of Judge Pinto de Albuquerque.
CONCURRING OPINION OF JUDGE ZIEMELE
- I agree with the outcome of the case and with the methodology adopted in respect of positive obligations. As indicated in my separate opinion in the case of Chiragov and Others v. Armenia, I would have preferred to also examine Armenia’s positive obligations under the Convention.
- The case at hand raises a different issue, which is clearly related to the concept of attribution of responsibility. The main question in dispute concerns the scope of Azerbaijan’s responsibility under the Convention in Gulistan, which is a village on the border with Nagorno-Karabakh where, allegedly, Azerbaijan cannot ensure respect for human rights because this area has become a no man’s land in view of the exchanges of fire on both sides of the border. The respondent Government argued that they could only have limited responsibility over that area since it was effectively a war zone and referred to the notion of “limited responsibility” developed by the Court in the case of and Others v. Moldova and Russia ([GC], No. 48787/99, ECHR 2004-VII).
- This is another type of situation in which the existing confusion in the Court’s case-law between the jurisdiction and responsibility tests gives rise to the relevant arguments of the respondent Government and puts the Court in some difficulty since the facts of the case are such that they require it to disentangle to some extent the dicta of the case in this regard. There is no doubt that Gulistan is within the jurisdiction of Azerbaijan, just as Transnistria is within the jurisdiction of Moldova. It is another question whether Azerbaijan is in control of the situation or actions on the ground. This, however, is a question of attribution of responsibility and not one of jurisdiction (for the correct distinction, see , § 333). The question of attribution is linked to the nature of the obligations.
- I think it was correct to say in the case that Moldova had positive obligations. It is equally correct to say that Azerbaijan has positive obligations here. In my view, this approach is more suitable in such situations of conflict.
- The Court has stated in the past that the only time when acts or omissions may not be attributed to the State, even where the territory concerned is within its jurisdiction, are those cases in which the territory is under military occupation or under the control of insurgents. However, even then as far as attribution of responsibility is concerned, the Court needs to look at the facts and determine which actions complained of were under which State’s control.
- Furthermore, I am not at all convinced by the Court’s statement of principle that because there is no other State that can be held responsible Azerbaijan must be responsible. This is not a test or a principle compatible with the rules of responsibility (see paragraphs 142 and 148). I do not share such sweeping statements. Whilst this can certainly be an ultimate goal to be achieved in Europe, it is not a legal criterion on the basis of which one attributes responsibility. In the case at hand, there is no area without protection because it is a village within the jurisdiction of Azerbaijan and that means that in principle this State is responsible. The real question is which obligations we are talking about and whether some inaction can be attributed to Azerbaijan.
- In the case at hand we have applicants who have lost their homes and cannot return there because of a long-standing conflict between two neighbouring nations. I have no doubt whatsoever that Azerbaijan is also responsible for the fact that no improvement in the conflict is in sight. There is no question but that it could do more to allow Armenians to return to their homes or grant compensation. These steps could even be taken unilaterally and possibly be a way of moving towards finding a solution to the conflict from a different angle. The same is true for Armenia. The two States do not need to agree on that together. By virtue of their Convention obligations, they could propose unilateral solutions for these people.
- It is on the basis of this understanding that I share the finding of the Court that there has been a violation of positive obligations as regards Article 1 of Protocol No. 1 and Article 8. Finding a violation of Article 13 may indeed be understood to mean that Azerbaijan can propose its own action plan. I entirely disagree, however, that there is room for any talk about “limited liability”. There may be very little that the State with jurisdiction can control or ensure and in that sense one can talk about limited possibilities for attributing actions or omissions to that State, but once some form of inaction has been attributed (for example, absence of a compensation scheme) there will be a responsibility if those obligations are not complied with.
CONCURRING OPINION OF JUDGE YUDKIVSKA
With some hesitation, I have voted in favour of finding a violation of Article 1 of Protocol No. 1 to the Convention and Article 8 of the Convention, albeit on a much more limited basis.
Two cases related to the Nagorno-Karabakh conflict – Chiragov v. Armenia and Sargsyan v. Azerbaijan – were examined concurrently by the Grand Chamber and a similar methodology pursued in both cases. The Court had the challenging task of guaranteeing a comprehensible interpretation of Article 1 of the Convention in post-conflict situations. I am convinced, however, that these cases are significantly different in a number of respects, and that their simultaneous examination was rather factitious, to the detriment of a coherent perspective of “jurisdiction”, thus leading to a result that cannot be seen as a fair one, namely that Azerbaijan bears full responsibility for the violations found.
Firstly, it is established that Gulistan – a village on the north bank of the river Indzachay, where the applicant had his property – is situated on a “line of contact” (frontline) between Azerbaijani military forces and those belonging to the separatist “NKR”, the latter’s actions being attributed to Armenia from the Convention viewpoint. The village and its surroundings are mined, and violations of the ceasefire occur regularly, presumably by both sides. Whilst negotiations between Armenia and Azerbaijan have not yet yielded any meaningful results, and the international community remains unhelpful in solving the long-standing conflict between the two member States, I fail to understand how in this specific case we can attribute the whole responsibility to Azerbaijan.
Secondly, in applying its jurisprudence on issues of jurisdiction and effective control, the Grand Chamber disregarded the fact that no one can stay in a ceasefire zone separating two belligerent forces (it is recognized that there were no civilians in the village), and the scope of the Convention guarantees is therefore significantly different. For the first time in its history the Court has had to address the issue of securing Convention rights and freedoms in a completely uninhabited territory.
I shall further elaborate on my points of disagreement below.
(1) Concurrent responsibility of two member States
In the instant case the paradox lies in the fact that it follows from the Court’s conclusion in Chiragov that Armenia “exercises effective control over Nagorno-Karabakh and the surrounding territories” (see paragraph 186 of the Chiragov judgment) including, obviously, the territory adjacent to the frontline. Thus, it should also be held accountable for the harmful outcome in the Sargsyan case and, consequently, bear some responsibility as well.
The issue of shared responsibility is not new to this Court, although no sufficiently clear guidance has yet been provided <1>. In previous cases many applicants believed that their Convention rights were violated by numerous States and submitted their applications accordingly. The Court thus put relevant questions to several parties concerned and had an opportunity to determine the scope of responsibility of each Contracting Party. This has been done in different contexts, such as expulsion and extradition (see, among others, M.S.S. v. Belgium and Greece <2>, and Shamayev and Others v. Georgia and Russia <3>), child custody (see, as the latest example, Furman v. Slovenia and Austria <4>), protection from trafficking (see Rantsev v. Cyprus and Russia <5>) and so on.
<1> See “Principles of Shared Responsibility in International Law – An Appraisal of the State of the Art”, Nollkaemper and Ilias Plakokefalos eds., Cambridge University Press 2014, p. 278.
<2> [GC], No. 30696/09, ECHR 2011.
<3> No. 36378/02, ECHR 2005-III.
<4> No. 16608/09, 5 February 2015.
<5> No. 25965/04, ECHR 2010 (extracts).
Concurrent responsibility clearly arises in the context of post-conflict situations, the Court’s landmark judgment in this respect being v. Moldova and Russia. In , which has provided guidance in the present cases, the territory of Transnistria was de facto controlled by the Russian-backed separatist regime, whilst remaining de jure a territory of Moldova. This factual situation affected the distribution of responsibility between Russia and Moldova.
Further cases arising from the Transnistrian conflict (, Catan) were examined in the same way, that is, from the perspective of shared responsibility of both Contracting Parties (although in those cases the Court found that Moldova had discharged its positive obligations). The Court was subsequently called upon to determine the level of responsibility of both Georgia and Russia regarding the allegedly unlawful detention of the applicant in South Ossetia, governed by the separatist regime presumably subordinate to the Russian authorities, in the case of Parastayev v. Russia and Georgia <*>. The case was communicated to both respondent Governments, but was later withdrawn following the applicant’s request.
<*> see Parastayev v. Russia and Georgia (dec.), No. 50514/06, 13 December 2011.
Thus, when an applicant brings his or her claim against all allegedly responsible States, the Court has an opportunity to examine the extent to which each of the respondent States is accountable. In the Court made it clear that the existence of a separatist regime reduced the scope of Moldovan jurisdiction (limiting this jurisdiction to positive obligations only); however, this was done in view of the further finding that the Russian Federation exercised jurisdiction over that part of Moldova. In the present case, being deprived of the possibility of examining Armenia’s responsibility for the violations complained of, the Court attributed full responsibility to Azerbaijan “taking into account the need to avoid a vacuum in Convention protection” (see paragraph 148).
I find that in the circumstances of the present case, in the absence of any claim against Armenia, this legal formula was artificial and led to erroneous and unfair conclusions: Azerbaijan, which has been trying to regain its control over the whole territory of its recognised borders for more than twenty years, was held fully accountable for the inability to establish normal life in Gulistan, which is under fire from “NKR” forces subordinate to Armenia. Full responsibility was attributed without full attribution of conduct.
The mere fact that the applicant, for obvious reasons, decided to lodge a complaint against only one High Contracting Party involved in the conflict and not both (as in or Parastayev) should not automatically engage the full responsibility of Azerbaijan, which is a victim State suffering occupation of a significant part of its territory (as is clear from the Chiragov judgment).
Alternatively, although the Court is obviously unable to examine proprio motu the issue of responsibility of a State which was not party to the case at hand, the mere existence of a long-standing inter-State conflict should trigger shared responsibility. Evidently, there is no mechanism under the Convention by which to identify a High Contracting Party accountable – partially or fully – for human rights violations complained of if an applicant brings a complaint against a party not responsible or responsible only in part. Nevertheless, it would be deceptive to ignore the factually clearly limited accountability of the respondent State; and procedural impediments should not turn into substantive wrongs.
Some inspiration can be drawn from the practice of other international bodies. I can mention the classic ICJ judgment in the case of Certain Phosphate Lands in Nauru <*>, in which the ICJ had to consider an objection by Australia based on the fact that New Zealand and the United Kingdom, which were equally involved, were not parties to the proceedings. The respondent State believed that a claim could only be brought against the three States jointly, and not against one of them individually. The ICJ found that no reason “had been shown why a claim brought against only one of the three States should be declared inadmissible in limine litis merely because that claim raise[d] questions of the administration of the territory, which was shared with two other States”. It found that Australia had obligations in its capacity as one of the three States involved, and thus proceeded to examine its (partial) responsibility.
<*> Case Concerning Certain Phosphate Lands in Nauru (Nauru v Australia): Preliminary Objections  ICJ Reports 240.
It further disagreed with the respondent State that any conclusion as to the alleged violation by Australia of its obligations would necessarily involve a finding as to the discharge by the other two States of their obligations in that respect (which in fact happened in the Sargsyan case):
“53. National courts, for their part, have more often than not the necessary power to order proprio motu the joinder of third parties who may be affected by the decision to be rendered; that solution makes it possible to settle a dispute in the presence of all the parties concerned. But on the international plane the Court has no such power. Its jurisdiction depends on the consent of States and, consequently, the Court may not compel a State to appear before it, even by way of intervention.
- A State, however, which is not a party to a case is free to apply for permission to intervene (…) But the absence of such a request in no way precludes the Court from adjudicating upon the claims submitted to it, provided that the legal interests of the third State which may possibly be affected do not form the very subject-matter of the decision that is applied for. (…)”
Similarly, whilst in the present case there was no procedural possibility of establishing any responsibility on the part of Armenia, the factual context of the case should have prevented the Grand Chamber from placing the whole blame on Azerbaijan. Instead, exactly as in , we are dealing here with the reduced scope of jurisdiction of Azerbaijan over Gulistan, and the undertaking given under Article 1 must be considered only in the light of its positive obligations.
I wholeheartedly concur with Judge Bonello, who mentioned in his separate opinion in the Al-Skeini judgment <*> that “[j]urisdiction arises from the mere fact of having the capability to fulfil [obligations under the Convention] (or not to fulfil them).”
<*> See Al-Skeini and Others v. the United Kingdom [GC], No. 55721/07, ECHR 2011, concurring opinion of Judge Bonello.
Without the relevant steps on Armenia’s part, which are clearly outside any control of Azerbaijan, the latter does not have the capability to fulfil its obligations in Gulistan. The applicant’s inability to gain access to his property in this village was triggered by the Armenian-backed “NKR”‘s belligerence, and any responsibilities of both States in this respect are concurrent and mutually dependent.
In Shakespeare’s words, “what’s past is prologue”. The applicant’s current situation is a result of the lengthy struggle between two member States with no solution for past problems yet being found and new problems evolving. As Judge Elaraby wrote, concurring with the ICJ Advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
“…Occupation, regardless of its duration, gives rise to a myriad of human, legal and political problems. In dealing with prolonged belligerent occupation, international law seeks to “perform a holding operation pending the termination of the conflict… [The rights] of every State in the area… to live in peace within secure and recognized boundaries free from threats or acts of force”… are solemn reciprocal rights which give rise to solemn legal obligations… Security cannot be attained by one party at the expense of the other. By the same token of corresponding rights and obligations, the two sides have a reciprocal obligation to scrupulously respect and comply with the rules… ” <*>
<*> Judge Elaraby, Separate Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Advisory Opinion, 2004 ICJ 136.
It is not within Azerbaijan’s power to unilaterally terminate the breach of the applicant’s rights, and both States have a reciprocal obligation to find a solution. Ultimately, to impose full responsibility on a State, part of whose territory has been unlawfully occupied for decades, is, in my view, plainly wrong from both a legal and a moral standpoint.
(2) “Effective control”
The majority found that the Government of Azerbaijan had full jurisdiction over Gulistan although they “may encounter difficulties at a practical level in exercising their authority” (see paragraph 150).
Apart from the above-mentioned matter of concurrent responsibility, a question arises regarding how we should understand the term “jurisdiction” in the context of empty land, or merely uninhabited territory. I cannot but quote Judge Loucaides, who gave the following definition in his separate opinion in the Assanidze case <*>:
<*> See Assanidze v. Georgia [GC], No. 71503/01, ECHR 2004-II, concurring opinion of Judge Loucaides.
“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 Party or outside that territory” (emphasis added).
Hence, the issue of the possibility, even a theoretical one, of imposing the State’s will on a person is central to determining jurisdiction. In this respect, from a judicial review perspective, the present case is unique. As I said earlier, for the first time this Court is dealing with the question of effective control over a territory in which there is no one on whom the State’s will can be imposed. As echoed by Judge Bonello in the above-mentioned separate opinion in Al-Skeini, “[j]urisdiction means no less and no more than “authority over” and “control of”. In relation to Convention obligations, jurisdiction… ought to be functional…”.
Whilst in Chiragov v. Armenia the Court examined a fairly standard situation of illegal occupation of a populated district (Lachin) by the separatist regime backed by Armenia (which is precisely why in that judgment the Court referred to the relevant Geneva Convention and Hague Regulations on occupatio bellica), here we cannot discuss any State’s “effective control of the relevant territory and its inhabitants” since there have been no inhabitants at all in Gulistan since 1994, so there is no possibility of a “functional” jurisdiction.
Can anyone exercise authority, in any sense of the word, over heavily mined territory which lies either side of a frontline, surrounded by armed forces from both sides and which, consequently, no one can even enter?
Human rights instruments are by definition person-orientated: there should be a person to enjoy the rights guaranteed by the Convention, and the High Contracting Parties shall secure these rights and freedoms to everyone within their jurisdiction.
The previous jurisprudence referred to in the present judgment – and Assanidze among others – is not, in my view, automatically applicable to the present situation: an empty land cannot have and does not require the same level of effective control as an inhabited area. The judgment accepted, in principle, that the present case was different (see paragraph 142, first sentence), but nevertheless suggested that it was up to the respondent Government to show that another State has “effective control”. I regret that the Grand Chamber lacked the courage to admit that we were dealing with a sui generis situation in which the absence of “effective control” of any occupying power over Gulistan does not inevitably mean that Azerbaijan exercises effective control over the disputed area. No similar precedents, to the best of my knowledge, can be found in our case-law.
None would contest that Azerbaijan has jurisdiction over its internationally recognised territory, including Gulistan; the disagreement here is about the scope of this jurisdiction. In paragraph 144 the judgment refers to Article 42 of the Hague Regulations, according to which territory is considered occupied when it is actually placed under the authority of a hostile army, and such authority has been established and can be exercised. Basing itself on the material in its possession, the Court concluded that Gulistan was not occupied by or under the effective control of foreign forces. I can agree with this, but a similar test – whether or not authority can be exercised – should apply when we are assessing whether or not Azerbaijan had full and operational jurisdiction over this territory.
The term “effective control” was developed in international law to describe the circumstances and conditions for determining the existence of an occupation. It assesses the exercise of authority in a territory. Thus it is a test for attribution of conduct.
A number of international tribunals’ judgments have underlined (in the context of occupation) this link between “effective control” and the possibility of exercising actual authority over a particular area. It is also stressed in the legal literature that the “degree of effective control required may depend on the terrain, the density of the population and a slew of other considerations” <*>. Clearly, we cannot talk about the same degree of “effective control” in inhabited areas as in uninhabited ones, and no actual authority over Gulistan is or can be exercised by Azerbaijan in the absence of any population.
<*> see Yoram Dinstein, “The International Law of Belligerent Occupation”, Cambridge University Press, 2009, p.44.
As suggested by Lord Brown in the Al-Skeini case <*> “… except when a state really does have effective control of territory, it cannot hope to secure Convention rights within that territory… Under these approaches, then, the test for territorial control must include a capacity to exercise public authority, because it is only in such circumstances that the state would actually be in a position to fulfill its obligations in the ECHR. In other words, the Convention cannot be applicable in a generalized sense when the state does not enjoy such authority, since the obligations it contains in part presuppose such enjoyment”.
<*> Al-Skeini and Others (Respondents) v. Secretary of State for Defence (Appellant). Al-Skeini and Others (Appellants) v. Secretary of State for Defence (Respondent) (Consolidated Appeals),  UKHL 26, United Kingdom: House of Lords (Judicial Committee), 13 June 2007.
Therefore, I find it difficult to apply, in the unique circumstances of the present case, the previous case-law in and Catan, as suggested in paragraph 148, to the effect that as long as it has not been established that Gulistan is occupied by another State, Azerbaijan exercises full control over it.
I perfectly understand the Court’s preoccupation with the idea that no areas of limited protection should be accepted within the Convention’s legal space. It is a long-standing approach both by the Court and by the Council of Europe that no de facto black holes are allowed to exist in Europe <*>. However, I find this judicial construction to be illusory, and we must accept that such “black holes” do exist – Transnistria, Abkhazia, South Ossetia, Nagorno-Karabakh, to mention just some. Moreover, in a relatively recent decision in the case of Azemi v. Serbia <**> the Court recognized that such areas may also exist de jure – after Kosovo proclaimed its independence “there existed objective limitations which prevented Serbia from securing the rights and freedoms in Kosovo”. The Court was not able “point to any positive obligations that the respondent State had towards the applicant”, who complained about the non-enforcement of a judgment in his favour. Since Kosovo is not a party to the Convention, it would appear that it constitutes a “limited protection area” in terms of the Convention.
<*> see the reference to the PACE motion for a recommendation “Lawless areas within the territory of Council of Europe member States” cited by Judge Kovler in the case.
<**> Azemi v. Serbia (dec.), no. 11209/09, 5 November 2013.
Further, in the decision of Stephens v. Cyprus, Turkey and the United Nations <*>, in which the applicant complained of the continuing denial of access to her house, which was located in the buffer zone in Nicosia, controlled by the UN forces, the Court easily rejected the complaint as being incompatible ratione personae, since neither Turkey nor Cyprus had jurisdiction over the buffer zone, thus accepting the existence of one more “black hole” in Europe (apropos of this, the area consisted of five villages where about 8,000 people lived or worked).
<*> Stephens v. Cyprus, Turkey and the United Nations (dec.), No. 45267/06, 11 December 2008.
Gulistan, not being an official “buffer zone” with or without the presence of peacekeepers, nevertheless remains, as described in the judgment, “the frontline between Azerbaijani and “NKR” forces”. There would be nothing wrong in acknowledging that this is an area with “limited protection”. In fact, we are not talking about a limitation of rights; there are just no human beings living in this area to enjoy the rights guaranteed by the Convention, so no interference with these rights can be envisaged. Of course, people in a situation similar to that of the applicant can claim certain rights and interests, but these rights can relate only to the State’s positive obligations.
Thus I find the conclusion in paragraph 150, according to which “the situation at stake in the present case is more akin to the situation in Assanidze”, to be strikingly wrong. In that case the Georgian Government encountered difficulties at a practical level in exercising their authority over the Ajarian Autonomous Republic, which was otherwise inhabited and fully operational. Contrary to that situation, as has been mentioned, Gulistan has remained an uninhabited territory since 1994. Consequently, although from a legal point of view Azerbaijan has jurisdiction over it, in practical terms this jurisdiction is significantly limited, as has been said earlier, comprising only positive obligations. Indeed, this was implicitly confirmed by the Grand Chamber in paragraph 226, according to which “the Court consider[ed] it appropriate to examine the applicant’s complaint with a view to establishing whether the respondent Government have complied with their positive obligations”.
So, what could be expected from Azerbaijan from the standpoint of positive obligations in the present case?
In the Court found, in respect of Moldovan responsibility under the Convention, that it had to determine whether “the measures actually taken were appropriate and sufficient in the present case. When faced with a partial or total failure to act, the Court’s task is to determine to what extent a minimum effort was nevertheless possible and whether it should have been made”.
Azerbaijan and Armenia, I believe, share responsibility for the applicant’s prolonged inability to enjoy rights guaranteed by the Convention. Until the peace negotiations achieve a significant result, the military status quo in Gulistan will be preserved. Ironically, whilst the Court recognizes Azerbaijani’s full jurisdiction over Gulistan and thus expects some action on its part to put an end to the continuing violations of the applicant’s rights, it is clear that any activity in the village by the respondent State, and any attempt to re-establish its control over the village, may threaten the maintenance of the ceasefire and endanger peace negotiations.
Nonetheless, given that the applicant has long been unable to gain access to his property, some minimum effort to secure compensation should be expected from Azerbaijan. Since, as can be seen from the case materials, the respondent State has never made any meaningful attempt to even consider the possibility of compensating the displaced Armenians for their lack of access to their property, I voted for a violation of positive obligations in this case.