TrustHLT/LaCour huggingface dataset:
AP3 (Applicant): I will respond to the court's first question as to the family's claim under Article 1 of Protocol 1 and Article 8 in relation to their home, land, and other property.
AP3 (Applicant): Mr. Gasparian will then make submissions
AP3 (Applicant): about the family's graves under Article 8, as well as responding to the court's second question on Article 13.
AP3 (Applicant): And then Mr. Gregorian will respond
AP3 (Applicant): to the court's third question on Article 14 and will make submissions on Article 41.
AP3 (Applicant): Mr. President, the Sarkissian family
AP3 (Applicant): were forced to abandon their home, their land, and other property, and they've never been able to return to the village.
AP3 (Applicant): The denial of their right to return to Gulistan and to have access to and to be able to use and enjoy their property, or to be compensated, amounts to a continuing violation of Article 1 of Protocol 1.
AP3 (Applicant): The government argues that it lacks jurisdiction and has no responsibility for this case.
AP3 (Applicant): They accept that Gulistan was and remains within its internationally recognized territory.
AP3 (Applicant): There is therefore a presumption of jurisdiction.
AP3 (Applicant): This presumption can exceptionally be rebutted.
AP3 (Applicant): We submit that the government has failed to adduce sufficient evidence to rebut the presumption of jurisdiction for the period from 15 April 2002 to the present day.
AP3 (Applicant): Azerbaijan's pleaded position has been inconsistent and unclear, but in 2012, it accepted that Gulistan was not under Armenian control.
AP3 (Applicant): Its evidence is weak and unreliable.
AP3 (Applicant): For example, the March 2012 statements of Lieutenant Colonels Abasov and Hossainov have substantial passages which are identical.
AP3 (Applicant): The intervening government's position is that the village has always been under the full, effective, and overall control of Azerbaijan and relies on detailed eyewitness statements from Nagorno-Karabakh officers attesting to the presence of Azerbaijani military positions in the village.
AP3 (Applicant): Several statements from former villagers who have tried unsuccessfully to go back to the village confirm that Nagorno-Karabakh forces were not in control of the village.
AP3 (Applicant): Now, if contrary to our submission, the court were to accept that Azerbaijan lacked control over the village, its responsibility is nevertheless engaged, as a result of its positive obligations under Article 1, to take appropriate steps to ensure respect for the convention rights within its territory.
AP3 (Applicant): Those obligations remain, even where the exercise of the state's authority is limited in part of its territory, so that it has a duty to take all the appropriate measures which it is within its power to take.
AP3 (Applicant): Therefore, even in the absence of effective control over Gulistan, the government still has a positive obligation to take diplomatic, economic, judicial, and other measures to secure the applicants' convention rights, as was found to be Moldova's responsibility as regards Transnistria in the Alashku case.
AP3 (Applicant): And the court applies a high standard.
AP3 (Applicant): In Alashku, it said that the state must endeavor with all the legal and diplomatic means available to it vis-a-vis foreign states and international organizations to continue to guarantee convention rights.
AP3 (Applicant): As regards the extent of the government's positive obligations, the present case is different to Alashku.
AP3 (Applicant): In Alashku, it was established that the Transnistrian regime had de facto control over that territory.
AP3 (Applicant): In this case, we say that the evidence establishes that no other state or entity has control over the territory.
AP3 (Applicant): Therefore, the extent of the positive obligations on the government to uphold the convention rights in the territory of Gulistan village are greater than was the case for Moldova in Transnistria.
AP3 (Applicant): That is because there would otherwise be a vacuum in relation to territory which, since 2002, has undeniably been within the espace juridique of the convention system, a state of affairs that the court in Cyprus and Turkey said must be avoided.
AP3 (Applicant): Mr. President, it is abundantly clear
AP3 (Applicant): that the government has done nothing in order to uphold the convention rights of the Sarsians as regards their right to return to their house and land or be compensated.
AP3 (Applicant): Since 1993, it has been a cornerstone of the international community's efforts in seeking a resolution of the conflict that refugees and displaced persons should be granted the right to return voluntarily or that they be provided with compensation, notably in the Bishkek Protocol itself and through the OSCE Minsk process, as reiterated in the 2005 Basic Principles and the 2007 Madrid Principles and subsequently.
AP3 (Applicant): The centrality of the right to return has been constantly underlied in UN Security Council resolutions by the Parliamentary Assembly of the Council of Europe and the European Parliament.
AP3 (Applicant): The international community has also continually made clear its frustration and regret the lack of any tangible, practical developments on this question.
AP3 (Applicant): This court has bent over backwards to give the government the opportunity to explain what it has done in order to comply with its positive obligations.
AP3 (Applicant): Even in response to the court's second explicit request on this point, to describe in as much detail as possible the general and individual measures taken since 2002, Azerbaijan's response is merely to submit that it is too dangerous to allow people back into Gulistan and to refer to a 1991 order, which refers to the possibility of private exchanges of property between refugees.
AP3 (Applicant): As to the restoration of the rights of refugees like the Sarksians, there is nothing else, not one single specific step taken since 2002.
AP3 (Applicant): Compare that with the series of specific steps taken by Moldova in the Alasku case prior to May 2001 in order to secure the applicants' convention rights.
AP3 (Applicant): They included interventions by Moldovan politicians condemning the illegality of the applicants' detention, judicial measures taken against those responsible, sending doctors to examine them, and providing financial assistance to their families, and the Minister of Justice negotiating for their release.
AP3 (Applicant): In the Ivantots judgment, also about Transnistria, Moldova was found to have met its positive obligations by constantly and systematically raising the applicants' particular situation and by continually seeking the assistance of other states and international organizations to secure their release.
AP3 (Applicant): In this case, the extent of the positive obligations on the state should be assessed in the light of, firstly, international law, notably the Pinheiro Principles, and secondly, specific steps stipulated by the international community in the particular context of this dispute, and thirdly, international practice, as for example in the Dayton process.
AP3 (Applicant): First and foremost, this means ensuring the right to return and restitution.
AP3 (Applicant): But it also means ensuring a right to compensation.
AP3 (Applicant): And there are also many other preparatory steps which should be taken leading to return or compensation.
AP3 (Applicant): They include establishing a legal regime to verify property ownership, establishing an independent institution to assess and enforce property claims.
AP3 (Applicant): Other confidence-building measures are set out, for example, in Annex VII to Dayton, and even phased returns in zones which are demilitarized and supported by international peacekeeping force.
AP3 (Applicant): At no stage in these proceedings has the government ever suggested that it has sought to achieve such aims or anything remotely comparable.
AP3 (Applicant): The position of Azerbaijan in this case presents a stark contrast to the considerable efforts made by Moldova to reassert the applicants' convention rights in Alaska.
AP3 (Applicant): We submit that the government's jurisdiction and responsibility is therefore clearly engaged in this case.
AP3 (Applicant): Mr. President, I turn to the merits.
AP3 (Applicant): The government has sought to deny that Mr. Sargsyan was the owner of any property in Gulistan,
AP3 (Applicant): and they do not accept that Minas lived in Gulistan and had his home there.
AP3 (Applicant): We submit the substantial evidence before the court, including detailed statements from members of the family and other villagers, confirms beyond any doubt that prior to their expulsion, the Sargsyans were living in their home in Gulistan and also establishes Mr. Sargsyan's ownership
AP3 (Applicant): of his house and land.
AP3 (Applicant): Minas and Lena physically built the house themselves.
AP3 (Applicant): They kept livestock, and they grew fruit and vegetables on their land.
AP3 (Applicant): Contrary to what the government has tried to suggest, Minas Sargsyan was the legal owner of the property.
AP3 (Applicant): He had applied to the village council in the early 1960s to register the division of his father's land and other property with his brother.
AP3 (Applicant): This was then recorded in the village council register, and he and his wife built their house on that land.
AP3 (Applicant): A number of witness statements from villagers, including a member of the board of the village council and a villager who was secretary to the village council for 24 years, confirmed that this was the procedure adopted in the village and that it was the procedure actually followed in Minas Sargsyan's case.
AP3 (Applicant): The allocation of land plots in the early 60s was regulated by the 1958 Charter on Village Councils, which vested village councils with the power to allot and allocate land within villages and register and record the division of households.
AP3 (Applicant): The government is simply wrong to suggest that village councils were not empowered to allocate land.
AP3 (Applicant): The government has repeatedly referred to the 1970 Land Code, which by definition was not in force in the 1960s.
AP3 (Applicant): As to the 60s, the government simply says that there was an absence of specific laws at that time and that prior to 1970, the only laws regulating property rights were the constitutions of the USSR and of Azerbaijan.
AP3 (Applicant): To prove his ownership, Minas has produced his technical passport, which incorporates a plan of the house and a specification of his plot of land.
AP3 (Applicant): The government acknowledges that technical passports were only provided to people who had legal title to the property in question.
AP3 (Applicant): However, the government tries to suggest that Minas Sargsyan's technical passport was deficient and even alleges that it is a falsification or a forgery.
AP3 (Applicant): On the contrary, it is perfectly valid in compliance with both the established practice at the time and the relevant domestic law, namely the 1985 instructions, which specified that in rural areas, the basis for registration of homes were the household lists held by the village councils.
AP3 (Applicant): Furthermore, as Minas had the right to use his land, he automatically became the owner of it in 1991 by virtue of the 1991 Land Code.
AP3 (Applicant): As the Sargsyans have been denied access to the home and land since 2002, they've effectively lost all control over their property, as well as any possibility to use and enjoy it.
AP3 (Applicant): There is no evidence establishing that the Sargsyans' house has been destroyed, as at 15 April 2002 or subsequently.
AP3 (Applicant): Indeed, one villager states that in August 2010, he was able to observe through binoculars that Minas' house was still standing, albeit with a dilapidated roof.
AP3 (Applicant): Minas remains the lawful owner of the house, land, and other property.
AP3 (Applicant): The continuing denial of access is an interference with his rights under Article 1 of Protocol 1.
AP3 (Applicant): And there is no legal basis for such an interference, and certainly not one that is publicly available.
AP3 (Applicant): The government refers to a Ministry of Defense order forbidding access to the village, which is secret.
AP3 (Applicant): There is no justification for the complete negation of the Sargsyans' families' property rights in the form of a total and continuous denial of access without compensation.
AP3 (Applicant): And for the same reasons, Minas and Lena Sargsyans' rights under Article 8 have been and continue to be violated.
AP3 (Applicant): They built their house in the early 1960s, and they lived there for 30 years, before they were forcibly expelled.
AP3 (Applicant): And while he was alive, Minas constantly reiterated his intention to return, as did Lena.
AP3 (Applicant): Mr. President, I now give the floor to Ms. Gasparian.
AP2 (Applicant): Mr. President, I'm going to address the court on Article 8
AP2 (Applicant): and Article 13.
AP2 (Applicant): Firstly, on the applicant's victim status and the merits of his Article 8 claim relating to the grave of the applicant's relatives.
AP2 (Applicant): The applicant submits that the continuing lack of access to his relatives' graves in Gulistan and the failure to respect his positive obligation by adopting measures designed to protect and maintain the graves of relatives in Gulistan, cemeteries engaged the right to respect for his private and family life.
AP2 (Applicant): The court's case law, including Elie Pahouas and Adrie Vionnet, confirm the applicability of Article 8 in comparable situations.
AP2 (Applicant): In Abdullayeva v. Russia, the court
AP2 (Applicant): found a violation of applicant's Article 8 rights as a result of the refusal of the authorities to return her son's body for burial.
AP2 (Applicant): Article 8 was explicitly found to be engaged by the refusal to permit her to visit her son's gravesite.
AP2 (Applicant): In Panola and Forte v. France, the court
AP2 (Applicant): found excessive delay by the authorities in returning the body of the applicant's child following an autopsy of violation of the right to respect for their private and family life.
AP2 (Applicant): Mina Sarksyan's father and three sisters, and Lena Sarksyan's parents and sister are buried in Gulistan cemeteries.
AP2 (Applicant): It is not disputed that the applicants have had no access to Gulistan and the graves of their relatives since they had to flee the village in 1992 and subsequently after the ratification of the convention in 2002.
AP2 (Applicant): The Sarksyans have therefore been unable to visit or take care of their relatives' graves since then.
AP2 (Applicant): The Sarksyans used to regularly visit and take care of their relatives' graves.
AP2 (Applicant): Attending the gravesite and respect and dignity for the deceased were taken very seriously by the Sarksyan family.
AP2 (Applicant): Mina Sarksyan said in 2008, I am a Christian and faithful person and I consider it a sin that I cannot take care of the graves of my ancestors, cannot go and light a candle, visit the graves on Easter, and respect their memory.
AP2 (Applicant): Lena Sarksyan said in 2010, every year on May 2nd, the whole population of the village used to go to the cemeteries as a tribute for respect for the dead.
AP2 (Applicant): We submit that the positive obligation inherent in securing effective respect for the Sarksyans' private and family life require that the government should have taken necessary steps to ensure the protection and maintenance of the Gulistan cemeteries.
AP2 (Applicant): The government has failed to provide any information about any measures it has taken to maintain or safeguard the graveyards, including, for example, protecting them from deterioration caused by vegetation or weathering or acts of vandalism.
AP2 (Applicant): In spite of the court's request in 2007, the government has failed to provide any information whatsoever as to the current status of the cemeteries in Gulistan.
AP2 (Applicant): This has caused the applicants great uncertainty and insecurity as to the fate of the graves.
AP2 (Applicant): The applicants' submissions as to the positive obligation of the government are made in the light of evidence of the damage or destruction of Armenian graves and historic monuments in Azerbaijan.
AP2 (Applicant): For example, in 2004, the European Parliament called on the Azerbaijani authorities to put an end to the demolition of Armenian cemeteries in Nakhichevan.
AP2 (Applicant): We therefore submit that the applicants are directly affected by being prevented from visiting the graves of their relatives in Gulistan, and the government's failure to respect its positive obligations to protect and maintain the Gulistan cemeteries.
AP2 (Applicant): The continuing interference with the applicants' Article 8 rights are not lawful, does not pursue a legitimate end, and is disproportionate.
AP2 (Applicant): Mr. President, I will now address
AP2 (Applicant): the question of domestic remedies and the merits of the applicants' Article 13 claim.
AP2 (Applicant): The burden is on the government to satisfy the court that any purported domestic remedy was effective and available in theory and in practice at the relevant time, that it was accessible, capable of providing redress in respect of the applicants' complaints, and offered reasonable prospects of success.
AP2 (Applicant): This burden of proof has never been satisfied.
AP2 (Applicant): What evidence does the government rely on?
AP2 (Applicant): There is a brief Ministry of Justice statement assessing that between 1991 and 2006, the courts in Baku delivered judgments in 243 civil claims affecting Armenians, 98 said to be relating to housing disputes.
AP2 (Applicant): However, there are no further details of those cases, except for two.
AP2 (Applicant): The first is the Mamadova case, which concerns the inheritance rights of a US citizen, and the second Chagarian case, which is about the hereditary succession.
AP2 (Applicant): Both cases are quite relevant, not in any way relating to Armenian displaced persons who were expelled and lost their homes and land during the conflict.
AP2 (Applicant): The government has not provided a single example of successful legal claim brought by someone in the Sargsyan's position.
AP2 (Applicant): Then in October 2012, in responding to the applicants' claim for non-pecuniary damages, the government made its first attempt to first reference to a body called the State Committee for Refugee and IDP Issues of the Republic of Azerbaijan.
AP2 (Applicant): It suggests that it would have been possible for the applicant to have applied to this body for support, without specifying what is meant by support.
AP2 (Applicant): There are no details at all as to what powers this body has, or what steps it has actually taken, and for whom.
AP2 (Applicant): Government fails to refer to any specific cases in which the committee has provided support, whatever that may mean, and certainly not to an ethnic Armenian refugee.
AP2 (Applicant): In Akdiva, the court underlined that in applying the domestic remedies rule, realistic account must be taken of the general legal and political context.
AP2 (Applicant): There are no diplomatic relations between Azerbaijan and Armenia, and ethnic Armenians cannot obtain visas.
AP2 (Applicant): The evidence before the court shows that in practice, visas are only granted to Armenians where they are participating in official visits organized by international organizations or diplomatic missions.
AP2 (Applicant): And in such cases, Armenians have a need to be provided with armed guards.
AP2 (Applicant): Under the Civil Procedural Code of Azerbaijan, the domestic courts have the right to require claimant to attend in person in order to present their evidence.
AP2 (Applicant): And it also requires witnesses to appear before the court in person.
AP2 (Applicant): This would not have been possible in practice for ethnic Armenians.
AP2 (Applicant): Instead of simply asserting there are no property records and alleging that Mr. Saksian's technical passport is forged,
AP2 (Applicant): for the reasons that Mr. Leach has explained,
AP2 (Applicant): there are positive obligations on the government to have someone in Mr. Saksian's position.
AP2 (Applicant): It has jurisdiction over the area, and hence it is responsible for ensuring there is an effective remedy for the applicant to challenge his violated rights.
AP2 (Applicant): The UN binarial principles confirm that the right of refugees to have restored to them any housing, land, or property of which they were unlawfully deprived, or to be compensated for any housing, land, or property that is factually impossible to restore, as determined by the independent impartial tribunal.
AP2 (Applicant): The principles also provide that the right to restitution should be prioritized as to the preferred remedy.
AP2 (Applicant): They also require that the state to establish and support equitable, timely, independent, transparent, and non-discriminatory procedures, institutions, and mechanisms to ensure that everyone unlawfully deprived of their home is able to submit a claim for restitution or compensation to an independent body and to receive a determination.
AP2 (Applicant): Look at the contrast as regards Greek Kipra property claims in northern Cyprus.
AP2 (Applicant): In Demopolis versus Turkey, the Grand Chambers was finally satisfied with the revised provision of the domestic redress on the basis that the property commission had been functioning for four years.
AP2 (Applicant): It was sufficiently independent.
AP2 (Applicant): It had made decisions in significant number of cases, including averting millions of euros in compensation and ordering the restitution of property.
AP2 (Applicant): The commission took a reasonable length of time and was subject to a right of appeal to a high administrative court.
AP2 (Applicant): The Azerbaijani authorities have failed to establish anything remotely comparable to this.
AP2 (Applicant): The government simply says that it is unable to provide alternative housing to the applicants since the applicant is not under its jurisdiction.
AP2 (Applicant): However, the PINARIA principles confirm that the right of restitution of property is a distinct right, which is not prejudiced by the non-return of the refugee possessing property rights.
AP2 (Applicant): Furthermore, states should ensure that restitution claims processing inaccessible for refugees and displaced persons, regardless of their place of residence.
AP2 (Applicant): The government has failed to undertake any measures to reestablish a housing and land registration system, or a property record, or any form of tribunal to receive undetermined property claims from displaced persons.
AP2 (Applicant): Furthermore, the government has not demonstrated that it has introduced a necessary legal regime to create the possibility for someone in the applicant's position to lodge property claims with the courts of Azerbaijan.
AP2 (Applicant): The applicant's second principle submission on domestic remedies is that the rule of exhaustion does not apply in cases where there is an administrative practice amounting to repetition of acts incompatible with the convention and official tolerance by the state authorities, which makes any attempt to bring proceedings futile.
AP2 (Applicant): In summary, it recalled that the original forced expulsion of the Sargsyan family and other ethnic Armenian families were carried out by Azerbaijani armed forces.
AP2 (Applicant): It is clear from the statements made by the international bodies over the years that there is an absence of any political will within the respondent government to ensure the safety of the property of ethnic Armenians, as the international community has been required to censor the continuing hostile anti-Armenian rhetoric of Azerbaijani political leaders.
AP2 (Applicant): We submit that there is strong evidence of the administrative practice, which means that the requirement to exhaust domestic remedies is inapplicable.