PARTLY DISSENTING OPINION OF JUDGE GYULUMYAN
- I disapprove of the Court’s reasoning in some parts of the judgment but agree with the conclusions of the majority finding violations of Article 1 of Protocol No. 1 to the Convention and Articles 8 and 13 of the Convention. I regret to have to disagree, however, with the Court’s decision not to examine Article 14 separately. I strongly believe that the Court should have reached the reverse conclusion and found a violation of Article 14, for the reasons set out below.
- The Court found in paragraph 279 of the judgment that the applicant’s complaints under Article 14 of the Convention amounted essentially to the same complaints already examined by the Court under Article 1 of Protocol No. 1 and under Articles 8 and 13 of the Convention, and therefore considered that no separate issue arose under Article 14 of the Convention.
- At first sight this approach seems to follow the previous case-law of the Court and in particular the Court’s approach in Cyprus v. Turkey, Xenides-Arestis v. Turkey, and Catan and Others v. Moldova and Russia.
- The issue here, though, is that while in the above-mentioned cases the establishment of the respondent State’s jurisdiction was a cornerstone of the Court’s reasoning, in the present case the issue of extra-territorial jurisdiction was not raised. In other words, at the material time the Republic of Azerbaijan exercised unconditional sovereign jurisdiction over the territories, which makes this case different from Cyprus v. Turkey and the other cases.
- The Court’s failure to differentiate the present case from the others, and its consequent failure to raise a separate issue under Article 14 of the Convention, presumably stem from its lack of due regard to the fact that the respondent State forcefully displaced its own citizens from those territories on the basis of their ethnicity. It is pertinent to mention that the respondent State did not subject ethnic Azeri citizens to similar treatment.
- Under these circumstances one may reasonably assume that the explanation for the Court’s fundamental failure to differentiate between these two situations is its reluctance to pay due regard to the politico-historical background to the case, which substantiates a finding of discriminatory treatment by the respondent State of thousands of people on the basis of their ethnicity.
- Nagorno-Karabakh (in Armenian, Artsakh) is located in the north-eastern area of the Armenian highlands. Since ancient times, it has been a province of Armenia and predominantly populated by ethnic Armenians. Clear evidence of this lies in the fact that there are thousands of Armenian Christian monuments, some of which date back as far as the 4th century AD, and in references to the region in the works of Strabo, Ptolemy, Plutarch, Dion Cassius, and others.
- After 387 AD Armenia was partitioned between Byzantium and Persia. Eastern Transcaucasia, including Nagorno-Karabakh, came under Persian rule. This did not affect the ethnic borders of the region, which remained the same throughout the centuries. Thus, it continued to remain inhabited by Armenians.
- In 1805 the historical territory of Artsakh was artificially named «Khanate of Karabakh». Along with many areas in Eastern Transcaucasia, it was annexed to the Russian Empire by means of the Treaties of Gulistan (1813) and Turkmenchay (1828) which were signed between Russia and Persia.
- After the collapse of the Russian Empire, which resulted in a new arrangement of recently formed States in the Caucasus, Karabakh became a theatre of war. The Caucasus Bureau of the Russian Communist Party thereafter disregarded the December 1920 Resolution of the League of Nations. It refused to accept a plebiscite as a popular mechanism for determining the borders between Armenia and Azerbaijan. Under immediate pressure from Stalin, the decision was made to separate Armenian-populated Nagorno-Karabakh and Nakhichevan from Armenia by force. On 5 July 1921 the Caucasus Bureau of the Russian Communist Party adopted a political decision to annex Nagorno-Karabakh to the Soviet Azerbaijan.
- The discriminatory treatment that the applicants faced in the present case can hardly be qualified as unprecedented. Taking advantage of the unsettled state of affairs following the First World War and the collapse of the Russian Empire, and in continuation of its policy of Armenian Genocide (1915), the Turkish forces joined arms with Azeri military units from 1918 to 1920 and proceeded to plunder and destroy hundreds of Armenian villages. On 28 March 1920 Shushi (the area’s capital) was burned and plundered and its Armenian population annihilated.
- Throughout its Soviet history and despite calls from the international community, the Soviet Union and Azerbaijan arbitrarily denied Nagorno-Karabakh’s appeal for self-determination. Every effort to discuss the dispute in a civilized fashion resulted in increased violence, economic blockades and massive disregard for the Armenian population’s rights. Massacres and mass murders of Armenians occurred hundreds of kilometres away from the Nagorno-Karabakh Republic (the NKR) as assaults were organised in various Azerbaijani cities: Sumgait, Baku, Kirovabad, and later throughout Azerbaijan. This violence was followed by the 1991 — 1994 Azeri-instigated war on the NKR, which resulted in thousands of casualties and destroyed an estimated 80% of Nagorno-Karabakh’s economy.
- The displacement and massacres of ethnic Armenians by Azeri and Soviet military units became even more violent after 10 December 1991, when, in the referendum, the overwhelming majority of the population of Nagorno-Karabakh voted in favour of its independence from Azerbaijan. It should be mentioned that independence was declared in accordance with the USSR legislation existing at that time, namely «The regulation governing questions concerning a union republic seceding from the USSR» (3 April 1990). This law governed the right of national autonomous regions to determine independently their legal status when a republic seceded from the USSR.
- Using the weapons and war materials of the USSR’s 4th Army that was headquartered in its territory, Azerbaijan engaged in wide-scale military actions against the people of Nagorno-Karabakh. During the Operation «Ring», which was conducted by Azeri and Soviet central forces, the population of twenty-four Armenian villages was subjected to deportation within a three-week period. In the summer of 1992, just six months after the referendum in favour of independence, Azerbaijan placed about 50% of the NKR territory under its military occupation.
- There were times when almost 60% of the territory of Nagorno-Karabakh was occupied. The capital city of Stepanakert and other residential areas were almost incessantly subjected to massive air and artillery bombardment.
- Since the early days of the military offensive by Azerbaijan, many international bodies, including the EU Parliament and the US Congress, have been actively engaged in efforts to find a resolution to the Nagorno-Karabakh conflict. The documents adopted by international organisations refer in most cases to displacements, torture and killings of ethnic Armenians by Azeri forces. This evidence proves beyond reasonable doubt that the actions by Azerbaijan amounted to discrimination and ethnic cleansing of Armenians not only in Nagorno-Karabakh but also in other major cities of Azerbaijan where Armenians historically represented a significant percentage of the population.
- Thus, on 7 July 1988 the European Parliament adopted a resolution condemning the massacres in Sumgait and referring to the tragic events of February 1988. The resolution acknowledged the deteriorating political situation that threatened the safety of the Armenians living in Azerbaijan and condemned the violence employed against Armenian demonstrators. It also called upon the Soviet authorities to ensure the safety of the 500,000 Armenians living in Azerbaijan and to ensure that those found guilty of having incited or taken part in the pogroms against the Armenians were punished according to Soviet law. On 18 January 1990 the EU Parliament passed another resolution calling for the immediate lifting of the blockade imposed on Armenia and Nagorno-Karabakh.
- In 1989 the US Senate passed a resolution highlighting America’s support for the fundamental rights and aspirations of the people of Nagorno-Karabakh generally, and for a peaceful and fair settlement of the dispute over Nagorno-Karabakh specifically (S.J. Res. 178).
- Section 907 of the United States Freedom Support Act of 24 October 1992 bans any kind of direct United States aid to the Azerbaijani government, the only Republic of the former USSR to which aid is banned, until «the Government of Azerbaijan is taking demonstrable steps to cease all blockades and other offensive uses of force against Armenia and Nagorno-Karabakh.»
- Azerbaijan has ignored such demands for the cessation of offensive assaults and has continued its bombardments and attacks in Nagorno-Karabakh. There can be no doubt but that their aim was and remains the ethnic cleansing of the territory of Nagorno-Karabakh. I quote just one illustration from Azeri sources which drive this point home — a statement of a former Azeri President: «In order to preserve the territorial integrity of Azerbaijan, we paid much attention to Karabakh. Of course some dilettantes have blamed me for that. I did so firstly because Nagorno-Karabakh had to be inhabited by the Azerbaijani population and secondly in order not to give the Armenians an opportunity to raise that question». This is from the address given by H. Aliyev, President of Azerbaijan, on 24 January 2001 during the parliamentary hearings on the settlement of the conflict.
- The continuing ethnic discrimination against Armenians by Azerbaijan after its ratification of the Convention has also been recognised by the Committee on the Elimination of Racial Discrimination (Concluding Observations of the CERD: Azerbaijan, UN Doc. CERD/C/AZE/CO/4 (14 April 2005), the European Commission Against Racism and Intolerance (ECRI) of the Council of Europe in all three of its reports on Azerbaijan (adopted on 28 June 2002, 15 December 2006 and 23 March 2011 respectively), and the Advisory Committee on the Framework Convention for the Protection of National Minorities (Opinion on Azerbaijan, ACFC/INF/OP/I (2004)001 (22 May 2003); Second Opinion on Azerbaijan, ACFC/OP/II (2007)007 (9 November 2007)). The ECRI stated that it «ha[d] repeatedly recognized the link between the harsh comments regularly made in this country about the Nagorno-Karabakh conflict and the discrimination that Armenians coming under Azerbaijan’s jurisdiction encounter in their daily lives» and that it «consider[ed] that, today more than ever, considerable efforts [were] needed on the part of the Azerbaijan authorities to ensure that these persons d[id] not feel threatened». Unfortunately, the Court ignored this call.
- A finding of one violation of the Convention should not always release the Court from the obligation to examine other possible violations of the Convention. I therefore believe that the Court made an error in dismissing the separate issue under Article 14 of the Convention and should have examined all the circumstances, which ultimately would have led to a finding of a violation of Article 14 of the Convention.
DISSENTING OPINION OF JUDGE HAJIYEV
In this opinion I would like to set out the reasons why I disagree with the majority opinion.
First of all I would like to point out that Gulistan is a historical place for Azerbaijanis. It is the village where the Russian Empire and Persia concluded a treaty in 1813 which went down in history as the Gulistan Treaty, according to which the Northern Azerbaijani Khanates, including the Karabakh Khanate, became part of the Russian Empire. In his poem «Gulistan», the Azerbaijani poet Bakhtiyar Vahabzade, who was prosecuted by the Soviet authorities in the 1960s, described the destiny of the nation divided by this event. I am starting with this brief background information in order to show that Azerbaijan had no interest in ruining this historical place.
Accordingly, the measures described in paragraph 32 of the judgment were not directed against the Armenian part of the population, who, according to the applicants, were living there comfortably and not in poor conditions, but taken by the Soviet authorities in order to destroy the insurgents concentrated there. The applicant, like thousands of other people from Karabakh, became a victim of the conflict and naturally my dissenting opinion does not intend to overlook the difficulties encountered by him and of which he complained to the Court in August 2006 in response to the complaints submitted in April 2005 and communicated by the Court in the case of Chiragov and Others v. Armenia.
The weakness of the complaint was visible to the naked eye already at the communication stage. Therefore, as is clear from the judgment, the Court faced major difficulties in justifying its position. Its reasoning does not appear at all convincing. Moreover, the very prospect of examining these two different cases at the same time is an unappealing one, since the Court may thus be wrongly understood as equating, to some extent, aggressor and victim. This unfortunate impression could have been avoided if Armenia had been involved in the case, but the Court was precluded from examining Armenia’s responsibility for the violations complained of.
I would begin by saying that the parties agree on the fact that Gulistan is situated in the internationally recognised territory of Azerbaijan. The following question arises: what are the Armenian military forces doing, in the territory of a sovereign State, closing access to the village from one side and mining the surrounding area? The Azerbaijani army is located on the other side of the village, so access to the village is controlled by the Azerbaijani army. At first sight the present case may seem similar to some other cases already examined by the Court, but only at first sight. It is true that the Court has developed criteria according to which jurisdiction and effective control are established and, at first sight, some of them, for example those in , Assanidze and so on, may be useful and applicable to the present case. But this is only at first sight. In reality, the present case is distinguishable from earlier cases in which the Court has been called upon to examine under Article 1 of the Convention the issue of effective control over the area where the alleged violations have occurred. The deserted village, surrounded from both sides by the opposing armed forces, and mined at its edges is, in the language of diplomats, a Contact Line or ceasefire line, and the applicant, being in his homeland, could successfully address his question to the Armenian authorities and ask what the Armenian armed forces are doing in the territory of another sovereign State closing his access to his homeland or at least complain about the actions of both States. However, these are rather rhetorical questions…
I will focus on the main question, which, in my view, is an important legal question to be answered in the present case: whether Azerbaijan has effective control over Gulistan. If we turn to international law, it does not contain any rules specifically applicable to zones which are located on a ceasefire line between the military positions of two opposing armies. As the Court noted in the case of and Others v. Belgium and Others (dec.) ([GC], No. 52207/99, ECHR 2001-XII), from the standpoint of public international law, the words «within their jurisdiction» in Article 1 of the Convention must be understood to mean that a State’s jurisdictional competence is primarily territorial, but also that jurisdiction is presumed to be exercised normally throughout the State’s territory.
This presumption may be limited in exceptional circumstances, particularly where a State is prevented from exercising authority over part of its territory. That may be as a result of military occupation by the armed forces of another State which effectively controls the territory concerned (see Loizidou v. Turkey and Cyprus v. Turkey), acts of war or rebellion, or the acts of a foreign State supporting the installation of a separatist State within the territory of the State concerned. The Court has also noted that, in order to be able to conclude that such an exceptional situation exists, the Court must examine on the one hand all the objective facts capable of limiting the effective exercise of a State’s authority over its territory and, on the other hand, the State’s own conduct. The undertakings given by a Contracting State under Article 1 of the Convention include, in addition to a duty to refrain from interfering with the enjoyment of the rights and freedoms guaranteed, positive obligations to take appropriate steps to ensure respect for those rights and freedoms within its territory (see Z. and Others v. the United Kingdom [GC] No. 29392/95, § 73, ECHR 2001-V). Those obligations remain even where the exercise of the State’s authority is limited. Taking these principles into account, the Court found that Moldova, even in the absence of effective control over the Transnistrian region, still had a positive obligation under Article 1 of the Convention.
However, I would like to refer to the partly dissenting opinion of Judge Sir Nicolas Bratza, joined by judges Rozakis, Hedigan, Thomassen and , in the case of and Others v. Moldova and Russia, in which the judges considered that the principal questions which fell to be determined were (i) whether this was an exceptional case in which the applicants were to be regarded as within the «jurisdiction» of the Russian Federation despite being at all material times outside the territory of that State and (ii) whether, being within the territory of Moldova, the applicants were to be regarded as within its «jurisdiction» so as to engage the responsibility of that State or whether, exceptionally, the presumption that they had been and were within Moldova’s jurisdiction was rebutted. In the author’s opinion, the two questions were closely linked and depended, as the Court’s judgment in the case makes clear, on a close analysis of the factual situation existing in, and relating to, the region. Further, analysing the conclusion of the majority, the author found that he could not agree with the majority and accepted the proposition that those within a part of the territory of a State over which, as a result of its unlawful occupation by a separatist administration, the State was prevented from exercising any authority or control could nevertheless be said to be within the «jurisdiction» of that State according to the autonomous meaning of that term in Article 1 of the Convention, which term presupposed that the State had the power «to secure to everyone… the rights and freedoms» defined therein. Judge Bratza found it equally difficult to «accept the conclusion of the majority of the Court that in such a factual situation those within the territory remain[ed] «within [the] jurisdiction» of the State but that the scope of that «jurisdiction» [was] reduced, the State continuing to owe positive obligations with regard to the Convention rights of everyone in the territory». The author found the very use of the terms «positive obligations of the State» and the reliance placed in the judgment on the case-law of the Court under Article 1 concerning such obligations misleading and unhelpful in the context of the case. Judge Bratza rightly highlighted that «that case-law — with its references to the fair balance to be struck between the general interest and the interests of the individual and the choices to be made in terms of priorities and resources — was developed in a factual context where the respondent State exercised full and effective control over all parts of its territory and where individuals within that territory were indisputably within the «jurisdiction» of the State for Convention purposes». In his view, the Court’s reasoning could not be readily adapted to the fundamentally different context in which a State was prevented by circumstances outside its control from exercising any authority within the territory and where the very issue was whether individuals within the territory were to be regarded as within the «jurisdiction» of the State for Convention purposes.
Let us turn to the facts of the present case, on the basis of which the Court has concluded that the alleged violations are within the «jurisdiction» of Azerbaijan within the meaning of Article 1 of the Convention and are capable of engaging the responsibility of the respondent State.
First and foremost I would like to note that, as the Court has acknowledged, Gulistan is located on the frontline between Azerbaijani and Armenian forces (see paragraph 142). Geographically, the village is situated to the north of these Azerbaijani territories occupied by the Armenian military forces, on the very border of the Contact Line, which passes through the river Injechay, where Azerbaijani military positions are on the north bank of the river Injechay and Armenian troops are on the south bank of the river. Gulistan is totally deserted, its surroundings are heavily mined by both sides and violations of the ceasefire are frequent. The unusual feature in this case, as both Azerbaijan and Armenia agree, is that the village of Gulistan, in which the applicant claims to have property, is located on the Line of Contact. Both Azerbaijani and Armenian maps bear this out. Neither side claims otherwise. The only argument is about the exact position of the forces around the village. This issue is very important for deciding the question of effective control over the village. Before moving onto an examination of this question, the following general information must be taken into account. The Line of Contact marks the ceasefire line existing at the end of the 1992 — 1994 war, which was frozen by the Bishkek Protocol of May 1994. In view of that, the Court is faced not with an examination of jurisdiction with regard to an area clearly within the jurisdictional competence of a Contracting Party, nor with the situation of an area clearly under the effective control of another Contracting Party, as was the case in or other cases already examined by the Court, but rather with a small piece of land that lies on the very ceasefire line itself. In practice the Line of Contact is maintained by the stationing of the armed forces of the parties and the extensive use of land mines. It has been a long time since any civilians were living in the village. There are regular violent exchanges of fire across the Line of Contact, including in the Gulistan area.
Now I would like to turn to the evidence which, according to the Court, permits it to conclude that effective control by Azerbaijan exists. I would like to observe that in this kind of case, taking into account the special circumstances, the Court has to act as a court of first instance. This in turn permits the Court, taking into account its requirements, as, for instance, those formulated in Nachova and Others v. Bulgaria ([GC], Nos. 43577/98 and 43579/98, ECHR 2005-VII), to examine the evidence having regard to its reliability and persuasiveness.
Thus, in the present case, the unreliability of the evidence submitted by the applicant and the third party was obvious: the «evidence» that a man was walking between houses in ruins, a man without a uniform or insignia belonging to any army, or that smoke could be seen rising from the chimneys of some houses, when it was not clear who had lit a fire in one of the few surviving houses. This evidence from the DVD submitted in 2008 is evidence to which the Court unfortunately referred in paragraph 137 of the judgment. It is obvious that these materials did not prove anything, so, further on in the judgment, the Court, in the hope of finding something proving Azerbaijan’s military presence in the village itself, referred to the Geospatial Technologies and Human Rights Project (AAAS). In my view, this did not provide any evidence either, even though the Court interpreted it as such in the same paragraph. Thus, in my opinion, the results of the AAAS report, in particular image 12, clearly show that there are trenches in or at least very close to the village. The representatives of the AAAS do not claim that the trenches are located in Gulistan. They just say, in or behind Gulistan. If all the elements of the AAAS report are taken together, as they are presented and interpreted in paragraph 137 of the judgment, they are contradictory, since they claim that the trenches can be seen in the 2005 and 2009 images, but are less clearly distinguishable in the 2012 image, because they are not being used. Besides, they recorded that the area was, on the whole, uninhabited. Accordingly, if the report does not claim that the trenches are located in the village, that there are military forces in the village, or that the trenches are being used, can it be claimed that there is an Azerbaijani military presence in the village? Particularly in the light of the Court’s observation that «as follows from the AAAS report… trenches have fallen into disuse in the period between 2009 and 2012 and are therefore less clearly visible». If the trenches were unfit by 2012, this must mean that they are not being used.
Accordingly, in my opinion, there is no evidence proving Azerbaijan’s effective control over Gulistan. If we are to conclude otherwise, then it has to be considered that Armenia, which has occupied part of the territories of another State, also has effective control over this area. As it is confirmed that, due to continuing fighting, no civilian is able to enter the village and the village is totally deserted and heavily mined from all sides, I conclude that neither of the opposing parties has effective control of the village. The case materials clearly indicate that Gulistan is a de facto «no man’s land». This is, I repeat, the characteristic of the present case which distinguishes it from other cases in which the Court has decided the question of jurisdiction and effective control. It is a totally new situation and the first case in which the Court has been asked to answer the question of effective control over a «no man’s land» situated on a contact line between two hostile parties and has had to solve this new legal issue. On the one hand it is an internationally recognized territory of Azerbaijan and it is clear that no areas of limited protection should be accepted within the Convention legal space. The Convention requires that the State secure the rights and freedoms guaranteed under the Convention to everyone under their jurisdiction. On the other hand the conclusion — contrary to the facts — that effective control has to be attributed to one of the parties cannot be based on international law and contradicts the very concept of «effective» control. In reality the present case does not in any way resemble the classic model of jurisdiction, and in the obvious absence of effective control as a precondition of positive obligations, it is impossible to speak of any positive obligation. In paragraph 140 of the judgment the Court affirms that «a limitation of a State’s responsibility on its own territory to discharging positive obligations has only been accepted in respect of areas where another State or separatist State exercises effective control». It is the presence of the Armenian occupying forces on the other side of Gulistan that not only closes access to the village but also excludes not only effective but any control at all over this territory of Azerbaijan and therefore, discharges Azerbaijan of its positive obligations.
In the Court, taking into account the fact that after ratification of the Convention Moldova had to enter into contact with the separatist regime in order to take certain measures to secure certain rights of the applicants guaranteed under the Convention, concluded that Moldova’s responsibility could be engaged under the Convention on account of its failure to discharge its positive obligations with regard to the acts complained of which had occurred after May 2001. The Court also found that the Moldovan authorities remained under an obligation «to take all the measures in their power, whether political, diplomatic, economic, judicial and other measures… to secure the rights and freedoms guaranteed by the Convention to those formally within their jurisdiction, and therefore, to all those within Moldova’s internationally recognised borders». If these requirements were to be applied to Azerbaijan, it «must endeavour, with all the legal and diplomatic means available to it foreign States and international organisations, to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention». As indicated in § 332 of the judgment, «in determining the scope of a State’s positive obligations, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, the diversity of situations obtaining in Contracting States and the choices which must be made in terms of priorities and resources. Nor must these obligations be interpreted in such a way as to impose an impossible or disproportionate burden.»
Hence, the measures taken in compliance with the positive obligations identified in have to be «appropriate and sufficient» and the Court must test this in the light of the «minimum effort» required. The question whether a State hampered by an inability to exercise its authority over a part of its territory has complied with its positive obligations has to be assessed by the Court on a case-by-case basis. However, as the research report indicates, some of those positive obligations were identified by the Court in . Some of these obligations are of a general nature, concerning the general policies and conduct of the State, and others are of an individual nature, that is, related to the applicant’s situation.
As indicated in § 339 of the judgment, a State hampered by an inability to exercise its authority over part of its territory has to take measures 1) to assert and re-assert its sovereignty over the disputed territory, 2) to refrain from supporting the separatist regime and 3) to re-establish control over that part of its sovereign territory. In my opinion, the defendant State is taking all these measures to re-establish its sovereignty not only over Gulistan, but also over all the occupied territories, is refraining from supporting the separatist regime and calling on the world community to adhere to this position as well and to respect the sovereign right of the State, and is trying, by every means, to re-establish its control over its territory.
In this regard, I would like to refer to information already given at the admissibility stage and in the further submissions of the respondent Government. These submissions confirm the continuing opposition of Azerbaijan to the unlawful occupation of Nagorno-Karabakh and the surrounding territories by Armenia. Azerbaijan’s attempt to re-establish control over its alienated territory is demonstrated through its support of the OSCE Minsk process as well as continuing efforts in the United Nations. As far as the latter is concerned, the General Assembly decided in 2004 to include an item entitled «The situation in the occupied territories of Azerbaijan» in the agenda. Regular discussions have followed. In this regard it can be noted that the General Assembly adopted two resolutions (60/285 of 7 September 2006 and 62/243 of 25 April 2008) reaffirming continued respect and support for the sovereignty and territorial integrity of the Republic of Azerbaijan within its internationally recognised borders. The process is continuing under the auspices of the OSCE. The Minsk process commenced in 1992 and Azerbaijan has made continuing and consistent efforts to resolve the dispute peacefully. The Basic Principles (also called «the Madrid Principles») presented by the three co-Chairs of the Minsk Group call 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; future determination of the final legal status of Nagorno-Karabakh through a legally binding expression of will; the right of all internally displaced persons (IDPs) and refugees to return to their former places of residence; and international security guarantees that would include a peacekeeping operation. Azerbaijan takes part in the regular meetings held by the co-Chairs with the Foreign Ministers and the Presidents of Armenia and Azerbaijan. Azerbaijan has offered every support for this process, believing it to be the best means by which it can re-establish its control over the occupied territories. In these discussions, Azerbaijan has made it clear that it is ready to grant Nagorno-Karabakh «the highest status of self-rule» within Azerbaijan.
Azerbaijan has always refrained from supporting the regime established by the relevant separatist forces and has taken and continues to take all possible political, judicial and other measures at its disposal to re-establish its control. In contrast to the case, Azerbaijan avoids any contact with the separatist regime.
In the case, the Court specified that it was not for the Court to specify the most appropriate measures to take, but only to verify the will of the sovereign State, expressed through specific acts or measures to re-establish such control. In my opinion, this means that these obligations have to be examined in the light of the circumstances of each case. All the above-mentioned factors show that Azerbaijan has taken and continues to take all possible measures and has therefore fully complied with its positive obligations of a general nature.
As to the special duties relating to the individual applicant, this type of positive obligation has been identified in the case-law in cases such as , Ivantoc and Catan. These obligations consist of trying to solve the applicant’s fate by 1) political and diplomatic and 2) practical and technical means and 3) taking appropriate judicial measures to safeguard the applicant’s rights.
In this regard it should be noted that in the somewhat similar cases already examined by the Court it only found a violation of this type of positive obligation in the case of , where the violations in question related to Article 3 and Article 5 issues. According to the Court’s general case-law concerning the core rights, the scope of the State’s obligations in relation to the effective enjoyment of these rights is, as a rule, extremely broad.
The present case concerns property rights and the measures that Azerbaijan would be required to take must, according to the general case-law of the Court, depend on the general and local context as well as a balance between the general interests and the individual’s rights. The particularity of this case is, as I have noted, the precise situation around the village of Gulistan, which lies, as explained above, on the ceasefire line between the two opposing forces. The measures that can realistically be taken are closely linked to the fact of occupation of these lands by one of the Contracting States to the Convention, which, according to the very nature of the Convention, must create the conditions for the return of the IDPs and refugees to their homelands.
It would constitute a gross failure of duty and a probable violation of Article 2 of the Convention were Azerbaijan to permit civilians to enter the village of Gulistan, which is a dangerous area with mines planted in the vicinity and with the armed forces of both sides patrolling the area. The village is situated on the frontline and the regularity of violations of the ceasefire would be a source of constant risk to the lives of individuals if they were to inhabit the area.
A State, by the very fact of occupation of the territories of another State, prevents it from exercising any authority or control over territory within its borders. As Judge Bratza said in his above-mentioned dissenting opinion, responsibility could «only be engaged in exceptional circumstances where the evidence before the Court clearly demonstrates such a lack of commitment or effort on the part of the State concerned to reassert its authority or to reinstate constitutional order within the territory as to amount to a tacit acquiescence in the continued exercise of authority or «jurisdiction» within the territory by the unlawful administration».
Moreover, Azerbaijan has not enacted any law depriving the applicant or any other person who has left their property as a result of the Nagorno-Karabakh conflict of their property rights. On the contrary, the right of all IDPs and refugees to return to their former places of residence has always been a subject of the negotiations and is included among the Basic Principles (Madrid Principles) mentioned above.
As the Court has noted, as long as access to the property is not possible, the State has a duty to take alternative measures in order to secure property rights.
However, when examining the question of positive obligations with regard to an individual applicant, the Court must not overlook the requirement that the measures expected from the State must not be an excessive burden on the State. In this regard and in order to ascertain the overall economic consequences of the conflict for Azerbaijan, the following factors must be taken into consideration: firstly, 20% of the Azerbaijani territories are under Armenian occupation and secondly, as a result of the conflict in and around Nagorno-Karabakh, 800,000 individuals have become IDPs, in addition to the 200,000 refugees from Armenia; 20,000 people have been killed; 50,000 people have been wounded or become disabled; and more than 4,000 citizens of Azerbaijan are still missing. The aggression against the Republic of Azerbaijan has severely damaged the socio-economic sphere of the country. In the occupied territories six cities, twelve towns, 830 settlements, and hundreds of hospitals and medical facilities have been burnt or otherwise destroyed. Hundreds of thousands of houses and apartments and thousands of community and medical buildings have been destroyed or looted. Hundreds of libraries have been plundered and millions of books and valuable manuscripts have been burnt or otherwise destroyed. Several state theatres, hundreds of clubs and dozens of music schools have been destroyed. Several thousand manufacturing, agricultural and other kinds of factories and plants have been pillaged. The hundred-kilometre-long irrigation systems have been totally destroyed. About 70% of the summer pastures of Azerbaijan remain in the occupied zone. The regional infrastructure, including hundreds of bridges, hundreds of kilometres of roads and thousands of kilometres of water pipelines and thousands of kilometres of gas pipelines and dozens of gas distribution stations have been destroyed. The war against Azerbaijan has also had catastrophic consequences for its cultural heritage in the occupied territories. According to preliminary data, the overall economic loss inflicted on the Republic of Azerbaijan as a result of Armenian aggression is estimated at 300 billion US dollars. Added to that is the non-pecuniary damage, which is obviously impossible to quantify. Thirdly, the State has supported and continues to support financially all the IDPs and refugees from Armenia with special social allowances.
Consequently, imposing further positive obligations on a State which is the victim of occupation by a neighbouring State will place an extremely excessive burden on that State. I conclude that Azerbaijan has complied with its positive obligations under the Convention by taking all possible and realistic measures. Contrary to the situation in Chiragov, where only the former inhabitants of Azeri origin of occupied Lachin are precluded from having access to their property, in the present case both the Armenian and the Azeri residents of Gulistan are equally victims of Armenian aggression.
For these reasons, I conclude that the applicant’s complaints do not come within the jurisdiction of Azerbaijan for the purposes of Article 1 of the Convention and that Azerbaijan has not failed to discharge any obligation in respect of the applicant imposed by that Article and that the responsibility of Azerbaijan is accordingly not engaged in respect of the violations of the Convention complained of by the applicant.