TrustHLT/LaCour huggingface dataset:
AP3 (Applicant): it's an honor to appear before you today, and particularly to address the learned judge's question, Judge Albuquerque.
AP3 (Applicant): I'm very grateful for that question, because we're in exactly the same position as he is on this issue.
AP3 (Applicant): We have searched in vain through all of the many, many rounds of submissions that have been lodged in this case by the respondent government, and found absolutely no mention whatsoever of the two cases on which they now hinge as the very center point of their arguments on this issue.
AP3 (Applicant): We would very much like to also have some details of these two cases in order to satisfy ourselves that they really do relate to Aziris who are from displaced situations.
AP3 (Applicant): We would simply ask the court that if time is not given to us to address those particular cases, that the court themselves approach them with real anxious scrutiny.
AP3 (Applicant): We note that on previous occasions, when the respondent government has relied upon cases from the Armenian judiciary relating to supposed cases of Aziris being able to have their rights redressed and to obtain effective remedies from the Armenian courts, those cases have tended to be slightly misstated.
AP3 (Applicant): They've not related in all cases to Aziris or to Kurds.
AP3 (Applicant): One of those three that they've referred to in the past, in their 2007 submissions, actually related to an Iranian man.
AP3 (Applicant): And none of them at all related to an IDP.
AP3 (Applicant): These were cases related to very minor, uncontested matters, contract disputes, real estate disputes, employment disputes.
AP3 (Applicant): There's certainly nothing at all of the kind of sensitive and conscientious, difficult situation in which this court is faced today in dealing with an ongoing armed conflict.
AP3 (Applicant): I'll turn now to my colleague, Mr. Ivers.
AP2 (Applicant): Before I just let Mr. Ivers deal with one of the questions concerning Article 1, Protocol 1,
AP2 (Applicant): let me just say one thing about the human rights defender's position.
AP2 (Applicant): My learned friend suggested that somehow the human rights defender was barred from taking up the case of our applicants and that somehow it required an application on behalf of the applicants to be registered in Armenia.
AP2 (Applicant): I just point to paragraph 48 of his own submissions in which he says the defender has locker stand-eye to challenge executive action and legislation even by the President on grounds of inconsistency and that he may therefore directly approach the Constitutional Court for a remedy.
AP2 (Applicant): An important feature of the power of the defender to accept individual complaints is that it's not confined to complaints of citizens but rather to any entity regardless of nationality.
AP2 (Applicant): So it follows from that, but it was always open.
AP2 (Applicant): We do not for one moment, just as my learned friend for the Azerbaijan government has submitted, to accept that the human rights defender was capable of providing remedies, particularly in relation to Article 8 or in fact the right to return to one's home.
AP2 (Applicant): But what we do say, however, is that the submission that somehow they were champing at the bit in order to take up this case is manifestly fanciful.
AP2 (Applicant): And just lastly, you can examine that within the context of your own judgment of 2011 in December where in actual fact you had to entertain the submission relied upon by the Armenian government, firstly that the NKR legislature had extinguished the property rights of our client, and secondly that this was not in actual fact the appropriate forum in any event that it lay within the Minsk process.
AP2 (Applicant): Both those were rejected.
AP2 (Applicant): It was only within that context that this new submission concerning free and unfettered access to Armenia arose, and we submit it is highly dissembling and artificial, given to the fact that actually for seven years no remedies were identified, and indeed no representation was made inviting the applicants to return to file claims.
AP2 (Applicant): Lastly, in relation to the question concerning whether or not Article 35 has any relevance, if it related to an independent state that had not signed the European Convention on Human Rights, we would submit it would not be relevant.
Dean Spielmann (JudgeP): Thank you. I'm afraid your time has expired, so I think we have to conclude.
Dean Spielmann (JudgeP): I mean, you have to conclude.
AP1 (Applicant): I can deal very quickly with the Article 1, Protocol 1 point, and we can have a couple of just observations in relation to jurisdiction thereafter.
Dean Spielmann (JudgeP): Well, I give you two more minutes, but that's it,
AP1 (Applicant): In relation to the Article 1, Protocol 1 point, can I make clear that our principal case is that there's been an administrative practice that denies the return of these IDPs, and that that goes not just to the merits, but also to the question of exhaustion.
AP1 (Applicant): As regards any positive obligations, although there are no positive obligations one might discern under Article 1, Protocol 1, of course concurrently the loss of a home affects Article 8, and there are positive obligations in relation to Article 8.
AP1 (Applicant): Just finishing, we rely also of course on the Court's judgment already, Paragraph 104, which stated that while the applicant's displacement in 1992 is to be considered as resulting from an instantaneous act falling outside the Court's competence, their ensuing lack of access to the alleged property and homes is to be considered as a continuing violation.
AP1 (Applicant): So the continuing nature, if the facts were made out, would be established in that way.
AP2 (Applicant): Mr. President, exceptionally, could I ask for just three more minutes?
AP2 (Applicant): We did receive a number of detailed questions from a number of judges, and in these circumstances, and particularly to avoid perhaps the need for further written clarification, I would indulge this court and ask for permission for just three minutes from the learning to end.
Dean Spielmann (JudgeP): Yes, I exceptionally grant you three more minutes, but I will grant 15 minutes to the respondent government. Please, you have the floor.
AP4 (Applicant): In response to Judge Spano's question about the best evidence on military presence, I refer to the first six points that I listed in my oral presentation.
AP4 (Applicant): I preface that by saying one should observe that whereas in Wazidu it was 30,000 Turkish soldiers that made the difference, in Ilashku it was only 1,500 Russian soldiers, which was sufficient to create effective overall control in the territory.
AP4 (Applicant): As to those six points that I highlighted, I make the following further observations.
AP4 (Applicant): There was the statement by the respondent's president about returning the security zones, completely unrebutted.
AP4 (Applicant): No suggestion he was misquoted.
AP4 (Applicant): That may well be the short answer to the whole jurisdiction point.
AP4 (Applicant): Forget their general.
AP4 (Applicant): Their own president has given you the answer.
AP4 (Applicant): I highlight the third point, the evidence from the International Institute of Strategic Studies.
AP4 (Applicant): I also refer to their military balance publication, which states in terms the respondent's troops make up a large contingency of the standing army in Karabakh.
AP4 (Applicant): The fourth and fifth points I also highlight.
AP4 (Applicant): The Charles Blandy analysis, which gives us numbers.
AP4 (Applicant): He estimates overall strength about 18,000 of which only 8,500 come from Nagorno-Karabakh.
AP4 (Applicant): There we have figures.
AP4 (Applicant): Those broad figures are corroborated by my fifth point, the International Crisis Group report, quote, over half of Armenia's army are believed to be Armenian citizens.
AP4 (Applicant): The respondent attempted to discredit this by producing a statement from Mr. Richard Gagosi, one
AP4 (Applicant): of the sources.
AP4 (Applicant): I really urge the court to read that statement.
AP4 (Applicant): I said earlier, he doesn't actually withdraw his opinion.
AP4 (Applicant): He maintains his opinion as to what he stated.
AP4 (Applicant): One also needs to stand back and ask what evidence there is against that.
AP4 (Applicant): Not one single contemporary document.
AP4 (Applicant): They admit conscripts.
AP4 (Applicant): They don't give us documents on this, even though they have them.
AP4 (Applicant): Instead, they rely on this so-called expert, Dr. Harib
AP4 (Applicant): Bukur, remarkable document based on undocumented interviews.
AP4 (Applicant): It is worse than hearsay, because it doesn't actually tell us what the interview said.
AP4 (Applicant): And ultimately, you have these generals.
AP4 (Applicant): But one Sargassian says he doesn't know the position.
AP4 (Applicant): Another Balyan maintains massive defense procurement are official secrets.
AP4 (Applicant): Ultimately, the court has to prefer the independent, objective evidence that has been given, as I have outlined, which does its best to give numbers in circumstances where, as we have said, the respondent has a policy of dissembling and of trying to keep matters secret.
AP4 (Applicant): I'd also like to address Judge Zemel's question on the legal position.
AP4 (Applicant): Primarily, we are saying that all these international law authorities are not relevant, because we are construing the concept of jurisdiction in Article 1.
AP4 (Applicant): Alternatively, as we understand the point being made, it's really the respondent's point.
AP4 (Applicant): They are saying that Nicaragua and the genocide case, the ICJ, laid down a detailed control test in Nicaragua in relation to the actions of the Contras, in the genocide case in relation to the actions of the Bosnian Serbs.
AP4 (Applicant): Superficially, that would appear to be different to what the court has said in terms repeatedly in the cases I cited, Al-Skaini, Wazidu, Ilashku, where it says you don't have to show detailed control.
AP4 (Applicant): But it is a superficial difference.
AP4 (Applicant): It is not a real difference, we say, because in those cases, the court was developing its own concept of jurisdiction.
AP4 (Applicant): And it was a territorial concept.
AP4 (Applicant): If you look at the wording, everything it says is in the concept of talking about effective control over an area.
AP4 (Applicant): And it's in that context, it says you don't have to show detailed control over a local administration.
AP4 (Applicant): That point simply did not arise in Nicaragua or the genocide case.
AP4 (Applicant): They were talking about actions of specific individuals and groups.
AP4 (Applicant): It was much closer to the court state authority line of jurisprudence.
AP4 (Applicant): So there's no real difference.
AP4 (Applicant): That's the answer.
Dean Spielmann (JudgeP): I give the floor now to Mr. Robertson.
Dean Spielmann (JudgeP): Mr. Robertson, please.
GR2 (Government): If I may answer firstly, I think there were 10 questions to which I will have to answer, so I'm going to be rather quick and to try to identify those parts of our pleading, particularly our evidence, an argument which seems to answer the question.
GR2 (Government): The first question is whether Nagorno-Karabakh, not having signed the convention, applies it, given that Armenia and Azerbaijan has.
GR2 (Government): This is the legal black hole that is suggested by Azerbaijan.
GR2 (Government): Is Nagorno-Karabakh a legal black hole?
GR2 (Government): By no means.
GR2 (Government): Not only does it have 18, I think, 24 judges in full in a Supreme Court, but a bar association of over 50 lawyers.
GR2 (Government): And we have a convention that is applied.
GR2 (Government): The chief justice of Nagorno-Karabakh says so in terms.
GR2 (Government): When he was asked whether it was applied, he said that the courts of Nagorno-Karabakh apply the European Convention.
GR2 (Government): You'll find his statement, which sets out and refers to a number of cases, at Appendix 8 to our 2012 submissions.
GR2 (Government): And, indeed, we include a case, Appendix 32, to our 2012 submissions where the convention is applied.
GR2 (Government): So there is, and the judge from Lechin, who was also, gave a witness statement, said in terms that he applied the European Convention.
GR2 (Government): Well, I think that's Appendix 9 to our 2012 submissions.
GR2 (Government): So there you have the convention, European Convention, applied by the Supreme Court.
GR2 (Government): You have evidence from the chief justice that it is applied.
GR2 (Government): You have cases, he refers to a number of cases, where it's applied under Article 6 and so forth.
GR2 (Government): And you have the chief judge of the Lechin area saying in terms that he applies it.
GR2 (Government): So the second question, which was, is in terms of the ICJ approach and its connection with the current law applied by this court.
GR2 (Government): You will find our submissions on this matter at paragraphs 112 onwards, where we compare and contrast the ICJ approach in Nicaragua and other cases to the European approach, the European court approach in the Turkey cases.
GR2 (Government): We don't rely, as I said in my opening, we don't nail our colors to the ICJ mask, but we put the material before you.
GR2 (Government): And if you look at Judge Bernello's concurring opinion in Cyprus and Turkey, you'll see that he draws very strongly on the ICJ and says there's a dilemma here that the court has to solve.
GR2 (Government): It has a real problem in this area.
GR2 (Government): So we deal with the cases at 112 onwards, including Al-Skaini.
GR2 (Government): So in a sense, we recommend that the court square the circle and adopt the ICJ approach, which does in some respects is clearer, particularly in relation to showing effective control over the court system.
GR2 (Government): It's not just a matter of having, showing boots on the ground.
GR2 (Government): And of course, for all the spy cameras and satellites that the Azeri army has no doubt hovered over Nagora Karabakh, there's no example whatsoever of any Armenian unit on the ground.
GR2 (Government): But there needs to be control over the court system.
GR2 (Government): It's not enough to show that there is influence.
GR2 (Government): It's not enough to show, as they keep saying, that Armenia is a party to the conflict.
GR2 (Government): They've got to show that the strings that Armenia pulls, as they claim, are not just charitable donations, not just the fund, not just interrelationships, but actually are strings making judges puppets.
GR2 (Government): And the cases that we've produced show that Nagora Karabakh judges are not puppets.
GR2 (Government): They are independent.
GR2 (Government): Can I move to, I think, Judge Village's question?
GR2 (Government): What have Armenian courts got to do with this at all?
GR2 (Government): Because the answer to that, and we entirely agree, we say that the evidence that we put on shows that the claim against the Armenian army is no good.
GR2 (Government): Because if you read the applicant's statements, and I've approached them as if I were formulating a claim, they all say that we were bombed and shot at by the Armenian army or air force.
GR2 (Government): Now, that's their claim.
GR2 (Government): So, on that claim, they can come to Armenia and sue the army for alleged wrongdoing in the air force, even though we point out Armenia didn't have an air force at the time, and the dispossession was by the Nagora Karabakh army.
GR2 (Government): So, they've got a choice, in a sense.
GR2 (Government): They can come to Armenia and sue the army for extraterritorial wrongdoing in the courts of Armenia.
GR2 (Government): We've put on a statement by a local lawyer saying, of course, that Armenia will, courts can give damages for wrongdoing by the army anywhere in the world.
GR2 (Government): But, of course, if you read our statements, it's obvious that they're misconceived, that when they call, describe the Armenian army, they're really talking about the Nagora Karabakh defense force.
GR2 (Government): And, of course, if they sue in Nagora Karabakh, they have the additional ability to get their land back, because they can get restitution, because they'll re-register them, as they did in the Zafaroff and Aleyev cases.
GR2 (Government): So, they...
GR2 (Government): We say, look, your claim as formulated is a claim that's justiciable in Armenia because it alleges the Armenian army wrongly destroyed their home.
GR2 (Government): If that's right, if you get that up, then you get damages in Armenia.
GR2 (Government): But, in fact, the evidence is that Armenia wasn't there at all.
GR2 (Government): They were in barracks, and it was a Nagora Karabakh army who had possession, as you say, of your property.
GR2 (Government): So, you can sue in...
GR2 (Government): You can get your additional remedy in Nagora Karabakh.
GR2 (Government): Now, so, that is the answer to judge your question.
GR2 (Government): It's not that you've overlooked anything.
GR2 (Government): It's simply that their claim is against the Armenian army, and so they have a right, they have a remedy, if they can make good that claim, even though the evidence is that all they can get in Armenia is compensation.
GR2 (Government): They can get compensation for distress and so forth and for the loss of their property, destruction of their property.
GR2 (Government): But if they want their land back, of course, they've got to go to Nagora Karabakh.
GR2 (Government): Now, can we guarantee that the statement of the Nagora Karabakh judge, the Lechin judge, is still valid today?
GR2 (Government): Well, of course, we can't guarantee anything in Nagora Karabakh because we have no control over it, effective or ineffective.
GR2 (Government): But, and so we cannot speak with it, but his statement was taken when the agent of the Armenian government and myself went to see him in Lechin last, in July, I think, 2012.
GR2 (Government): So he emphasized that the European Convention would apply and that he was entirely independent of Armenian authorities and that he would give disclosure, he would give, he would order, he said, government representatives to come to court and face examination.
GR2 (Government): And he was, that statement was supported by other people in the administration in Lechin.
GR2 (Government): So to that extent, that statement is entirely credible and he evinced to us a desire to assist the court if his evidence wanted orally, he will certainly assist any fact-finding mission.
GR2 (Government): The latest cases, and I regret this, there has been, unfortunately, some confusion with the registry in a number of matters, but these were put up on the portal on Monday and we assumed that they would go to the judges in the other parties.
GR2 (Government): Our assumption was wrong, but they are there in a body of material that was put on the portal in relation to this case on Monday.
GR2 (Government): We're sorry, of course, Ms. Butler and her team
GR2 (Government): should have the opportunity to read them and make any comment they wish, and perhaps in the two weeks that we could be permitted in relation to written material, that can be done.
GR2 (Government): But they are document nine and document ten.
GR2 (Government): The Zafirov case is case two, stroke 260 of 2005 and the Aleev case is stroke two, 281 of 2003.
GR2 (Government): Both were cases in the court of Nagora Karabakh, first instance at Stepanakert.
GR2 (Government): Both cases were successful.
GR2 (Government): We are told there was no appeal and you will find them there.
GR2 (Government): They are almost identical cases to the applicant's case.
GR2 (Government): They concern IDPs who fled, who found that they could get a remedy because they inquired of Nagora Karabakh representatives in Russia.
GR2 (Government): They came back, they sued, the local authority refused to register their land.
GR2 (Government): They took them to court and the local authority was ordered to register their land.
GR2 (Government): Now, the sixth question, any legal...
GR2 (Government): We weren't sure whether this question was asking whether there was any law that prevents ownership of land in Nagora Karabakh by Azeris.
GR2 (Government): If that was the question, there certainly isn't.
GR2 (Government): There is indeed laws against discrimination on race or ethnicity.
GR2 (Government): If the question was whether there was any law that prevents expropriation by the Nagora Karabakh force of Azeri land, then there is, as we say, a rule against discrimination.
GR2 (Government): And you have the cases of Zafaroff and Aleev that show that you can get your land back if you are Azeris who have fled.
GR2 (Government): Now, the seventh question concerned passports and the evidence that we put on in our 2013 submissions show that you cannot, a Nagora Karabakh citizen, cannot get passports as of right.
GR2 (Government): There's a highly formal process.
GR2 (Government): You've got to show humanitarian reasons.
GR2 (Government): And we put on evidence of a case where a gentleman showed that he could only get medical treatment in Frankfurt.
GR2 (Government): And so that evidence was sent to the Armenian authorities.
GR2 (Government): They looked at it, and only then did they give it.
GR2 (Government): So it's not for a Nagora Karabakh.
GR2 (Government): And it is certainly not automatic.
GR2 (Government): There was another case of someone who was competing in an athletic event.
GR2 (Government): It is simply the fact that we are discriminated against by other countries, Nagora Karabakhians, as a charitable act.
GR2 (Government): Then there was the question about the minister statement.
GR2 (Government): Well, he's a politician, isn't he?
GR2 (Government): This is what these sort of statements are made by politicians on all sides for nationalistic reasons.
GR2 (Government): There are politicians in Azerbaijan who talk about bombing Nagora Karabakh and so forth.
GR2 (Government): I should say that an inquiry has been made about the number of passports issued to Nagora Karabakhians.
GR2 (Government): And it would appear that approximately 900 passports have been issued over the years since the agreement in 1998.
GR2 (Government): And so given that there are about 150,000 Nagora Karabakhians, that shows that it is, in fact, a very limited number.
GR2 (Government): The conscript cases, I think you asked about one conscript case.
GR2 (Government): The case, the 1994 Status of Forces Agreement, provides that, of course, the Armenian army, and it's got a court in Goris, which is in Armenia, just over the border, deals with discipline cases against Armenian conscripts who may be serving in the NK army.
GR2 (Government): There was one case, in fact, where all the witnesses were in Stepanakert.
GR2 (Government): And by agreement, the court moved from Goris to Stepanakert.
GR2 (Government): But for that, that was only one case.
GR2 (Government): I gather it's the only case, and it was exceptional and dealt with witnesses.
GR2 (Government): Finally, there was the question of the All-Armenian Fund.
GR2 (Government): And I think you have a similar number, the document 12, in our submissions that we put on the portal on Monday, that it would appear members of the court who have not been supplied with by the registry show that there are comparable numbers, the amounts each year given by the Armenian diaspora, and so as given by the United States Congress or Senate.
GR2 (Government): So that concludes the questions.
GR2 (Government): I will only comment that you've heard from the applicants that Charles Blandy's name crops up again.
GR2 (Government): This is the kind of thing they invite you to decide, a question as important as effective control by appeal to people about whom they tell you nothing, whose expertise is unknown.