TrustHLT/LaCour huggingface dataset:
TP2 (ThirdParty): In that resolution, it was underlined that deeply concerning reports exist of illegal activities exercised by Armenian troops in the occupied Azerbaijani territories.
TP2 (ThirdParty): There was a call for the withdrawal of Armenian forces from occupied territories surrounding Nagorno-Karabakh.
TP2 (ThirdParty): This is supported by many authoritative statements.
TP2 (ThirdParty): The US Department of State's country reports on human rights for both 2011 and 2012 underlined that the NKR and the surrounding territories, including Lachin, were controlled by ethnic Armenian separatists with Armenian support.
TP2 (ThirdParty): Further, in 2012, it was reported that an Armenian soldier had been shot dead by a colleague, and this had been investigated by the Armenian Ministry of Defense under the Armenian Criminal Code, evidence not only of the effective control of Armenia, but of the involvement of officials and agents of Armenia, thus complying with the requirements of both forms of responsibility in Al-Skani.
TP2 (ThirdParty): The extensive ties between Armenia and the NKR continue to be evidenced and progressed by continuing high-level visits.
TP2 (ThirdParty): The political support given by Armenia to the NKR is evidenced by statements made in 2013 by the President of Armenia, in which it was stated clearly that Armenia acts as the guarantor of the safety of the people of Nagorno-Karabakh.
TP2 (ThirdParty): The President of Armenia, the former President of Armenia, both held offices in the military and the political structures of the NKR before moving into Armenia proper.
TP2 (ThirdParty): The economic links between Armenia and the NKR are formidable.
TP2 (ThirdParty): The All-Armenian Fund was founded by Armenia and is controlled by it.
TP2 (ThirdParty): The President of the Board of Trustees is the President of Armenia.
TP2 (ThirdParty): It funds an overwhelming number of activities in the NKR, ranging from the construction of hospitals, electricity substations, highways, bridges, and water supply networks.
TP2 (ThirdParty): It is clear beyond doubt that Armenia exercises a degree of real, effective control in reality over the NKR and surrounding occupied territories, including Lachin, that prevents it from denying its responsibility under Article 1.
TP2 (ThirdParty): The applicants are, therefore, entitled to the protection of the Convention and of this Court.
Dean Spielmann (JudgeP): Thank you, Professor Shaw. I give the floor to Mr. Lansky.
TP1 (ThirdParty): Mr. President, esteemed members of this court,
TP1 (ThirdParty): let me deepen and go more intensively to the topic of effective remedy, which has been addressed by Mr. Mueller
TP1 (ThirdParty): and strongly addressed previously by Mr. Roberts.
TP1 (ThirdParty): The Armenian legislation and practice and the practice in NKR are far away from fulfilling the criteria of effective remedies developed by this court in the admissibility decision, Demopoulos and others, against Turkey of 2010.
TP1 (ThirdParty): They did not implement restitution in integrum redress mechanisms and inform and in special legislative acts with needed retrospective effect and did not at all introduce an independent property commission.
TP1 (ThirdParty): Let me go into the details of the arguments of the respondent government concerning that topic.
TP1 (ThirdParty): Does the Constitution of the Republic of Armenia deliver such an effective remedy?
TP1 (ThirdParty): No, it does not.
TP1 (ThirdParty): In accordance to the jurisdiction of this court with concerning Article 13, this redress must provide, has to provide precisely determined and practically enforceable redress that might allow the applicants to return to the land plots and it must have a competent authority to be addressed to.
TP1 (ThirdParty): The Constitution does guarantee the right to property and the right to respect for private and family life, but it contains neither a provision for the enforcement of applicant claims nor determines a competent authority.
TP1 (ThirdParty): Such a constitutional regulation may never substitute a system of procedural provisions and regulatory competencies aimed at realizing the effective implementation of rights.
TP1 (ThirdParty): Any other assumption or arguing would completely be against the foundations of the rule of law in particular because it would not ensure legal forcibility and it would jeopardize legal certainty.
TP1 (ThirdParty): Does the Land Code 91 of the respondent represent an effective remedy as the respondent claims?
TP1 (ThirdParty): Why?
TP1 (ThirdParty): As Article 119 of the Armenian Code, Land Code 2001, implies that after its entry into force, the Land Code of 91 expires.
TP1 (ThirdParty): That's why the Land Code 91 has no more effect in our case.
TP1 (ThirdParty): Next question, does the Land Code 2001 represent an effective remedy?
TP1 (ThirdParty): Please read carefully Article 4, Paragraph 3 of this Land Code and you will find there, repeating by the way, the Article 31 of the Constitution, and I may quote it because it has so strongly been claimed by the respondent.
TP1 (ThirdParty): This Article 4 says, foreign residents and non-citizens of the Republic of Armenia cannot obtain property rights on land.
TP1 (ThirdParty): They can only be land users.
TP1 (ThirdParty): From that follows that Azerbaijani citizens are excluded by law to be or to become land owners.
TP1 (ThirdParty): Together with Article 1 of the same Land Code, which states that other laws and statutory legal acts on regulation of land relations must be, in any case, under strict correspondence to the Land Code, makes clear that no other laws of the Republic of Armenia could substitute or could give more restitution ground than the clauses of the Land Code.
TP1 (ThirdParty): We have a very clear regulation in Article 117, Paragraph 2 of the Code, which says that land relations arising before the implementation of this Code will be regulated after the rules of this Code.
TP1 (ThirdParty): That means that there is no question about it, that the Land Code 2001 is governing our questions of the IDPs of the claimants.
TP1 (ThirdParty): Does the Land Code of the so-called NKR provide effective remedy?
TP1 (ThirdParty): It does not contain provisions for compensations in the case of property losses or restoration of the loss of property rights.
TP1 (ThirdParty): I conclude neither the rules in the Republic of Armenia nor the rules in Nagorno-Karabakh, so-called Nagorno-Karabakh, gives remedy.
TP1 (ThirdParty): And speaking about the cases which Mr. Robertson
TP1 (ThirdParty): has tried to elaborate, we do not know one single case, one single case which has been presented by the respondent in which Azerbaijan IDPs, not being of Armenian ethnic origin, would have had to redress under Armenian or NKR law.
TP1 (ThirdParty): The cases which are in our files, at least, have no whatever success concerning effective remedy, and they did not have any chance of justice.
TP1 (ThirdParty): That's the human rights defender.
Dean Spielmann (JudgeP): Mr. Lansky, may I ask you to conclude please?
TP1 (ThirdParty): Yes, Mr. President.
TP1 (ThirdParty): Also, the rules of the Human Rights Defender do not give any chance to order any measures or impose any sanctions.
TP1 (ThirdParty): That's why also those rules have no chance of success under effective remedy criteria.
TP1 (ThirdParty): Thank you, Mr. President.
Dean Spielmann (JudgeP): Thank you, Mr. Lansky. I turn now to the judges if there are questions.
Dean Spielmann (JudgeP): Judge López Guerra, please.
Luis López Guerra (Judge): Thank you Mr. President. Only one question and affirmation that somehow has struck me
Luis López Guerra (Judge): both to both parties. I understand, we know that Azerbaijan is a country which is a signatory
Luis López Guerra (Judge): of the European Convention on Human Rights. It's bound by it. Armenia is also a signatory
Luis López Guerra (Judge): of the European Convention. Now, looking at Nagorno-Karabakh, if Nagorno-Karabakh were
Luis López Guerra (Judge): a separate, independent state, not being a signatory of the European Convention, would be the European Convention applicable, will be enforced, will be the rights recognized by the European Convention enforced in the territory of Nagorno-Karabakh? In this case,
Luis López Guerra (Judge): if it were not bound by the Convention, what would be the relevance of Article 35 of the Convention for the territory of Nagorno-Karabakh for this case?
Dean Spielmann (JudgeP): Judge Ziemele, please.
Ineta Ziemele (Judge): My first question is indeed on jurisdiction, since in the pleadings just now, we heard all three parties indeed discussing at lens this issue.
Ineta Ziemele (Judge): And I would really appreciate if the applicants, the respondent government and the third party, if you wish so, clarified your point.
Ineta Ziemele (Judge): And the point you were making is the following.
Ineta Ziemele (Judge): You were drawing comparison with the ICJ's judgment in the Nicaragua case, followed up by indeed, as mentioned, by the genocide case.
Ineta Ziemele (Judge): And you were suggesting that in fact, this court has taken a different approach as compared to the one taken by the ICJ in the Nicaragua case.
Ineta Ziemele (Judge): I would be much obliged if you gave an indication, one or two elements with reference to Ilaşcu or Loizidou cases.
Ineta Ziemele (Judge): Where do you see exactly that this court has in fact departed from the ICJ's approach as concerns test of responsibility?
Ineta Ziemele (Judge): And secondly, I have a small question for the applicants.
Ineta Ziemele (Judge): If you could very briefly answer, the question goes to Article One of Protocol One.
Ineta Ziemele (Judge): Is your submission in fact, that there is a specific and identifiable administrative, executive or legislative act or action attributable to the respondent government which has prevented the applicants that you represent from accessing their houses, which are these acts or actions?
Ineta Ziemele (Judge): Or in fact, your submission is, under Article One of Protocol One, that the respondent state is under a positive obligation to adopt policies, legislation, et cetera, that would enable the applicants to access their houses.
Dean Spielmann (JudgeP): Thank you, Judge Villiger.
Mark Villiger (Judge): I have a question to the respondent government, something that the learned representative said, which I didn't understand, and maybe I'm overlooking something.
Mark Villiger (Judge): I would be glad for clarification.
Mark Villiger (Judge): The respondent government said that the applicants did not exhaust domestic remedies available to them in the Nagorno-Karabakh Republic and in Armenia.
Mark Villiger (Judge): Now, the applicants had their property in Lachin, occupied by the Nagorno-Karabakh Republic, that is undisputed.
Mark Villiger (Judge): So I can understand if you are claiming that the applicants should have gone before the courts of Nagorno-Karabakh.
Mark Villiger (Judge): But you also said that they should have gone before the Armenian courts.
Mark Villiger (Judge): And I just have one quote here, which the learned representative said, lawyers and judges in Armenia are waiting to process these claims, end of quote.
Mark Villiger (Judge): Here I'm confused, puzzled.
Mark Villiger (Judge): What do Armenian courts have to do with the Lachin area, occupied by Nagorno-Karabakh Republic, where the applicants have their property?
Mark Villiger (Judge): How could Armenian courts have provided legal redress to the applicants?
Mark Villiger (Judge): Maybe I've overlooked something, and I'll be grateful if you could clarify.
Dean Spielmann (JudgeP): Thank you Judge Villiger. Judge Paulo Pinto de Albuquerque, please.
Paulo Pinto de Albuquerque (Judge): Thank you, President.
Paulo Pinto de Albuquerque (Judge): Three questions, all addressed to the respondent government, and all regarding non-exhaustion of domestic remedies.
Paulo Pinto de Albuquerque (Judge): First, can the government solemnly guarantee to this court that the statement of the Lachin judge with regard to the admissibility of claims of property by people of Azeri and Kurdish origin are still valid today?
Paulo Pinto de Albuquerque (Judge): Second, two cases were referred by the respondent government of restoration of property to Azerbaijani IDPs.
Paulo Pinto de Albuquerque (Judge): And I went through the old file, and I cannot remember to have read any reference to these two cases.
Paulo Pinto de Albuquerque (Judge): I would be grateful for clarification with regard to the date when these judgments were delivered, by which court, and if these two judgments are yes or no final.
Paulo Pinto de Albuquerque (Judge): Third question, is there any legal provision in the NKR prohibiting or expropriating ownership of land or other property by people of Azeri or Kurdish origin?
Paulo Pinto de Albuquerque (Judge): We know what the so-called Constitution of the Nagorno-Karabakh Republic says, but is there any additional legislation which directly prohibits or indirectly prohibits or expropriates ownership of land or other property of IDPs from Azeri or Kurdish origin?
Dean Spielmann (JudgeP): Thank you, Judge Pinto de Albuquerque, Judge Gyulumyan.
Alvina Gyulumyan (Judge): I have questions for both parties.
Alvina Gyulumyan (Judge): First, three questions for the applicant.
Alvina Gyulumyan (Judge): Is it the applicant's case that the highly respected judges, ministers, and lawyers of Armenia and Nagorno-Karabakh are lying in their witness statements?
Alvina Gyulumyan (Judge): If so, will you please point out the lies or false statements that you allege?
Alvina Gyulumyan (Judge): This is the first question.
Alvina Gyulumyan (Judge): And second question, as you mentioned, the applicant's lawyers admit that they have no experience with Armenian or Nagorno-Karabakh law.
Alvina Gyulumyan (Judge): Why didn't the applicants seek help from lawyers with such an experience?
Alvina Gyulumyan (Judge): And my third question, as we know, your government has adopted so-called blacklist of foreigners who visited NKR.
Alvina Gyulumyan (Judge): My question would be, could their own citizens freely travel to NKR without fear that they will be punished by their own government?
Alvina Gyulumyan (Judge): We had the case before this court, Eynulla Fatullayev, in which we know that the applicant was punished for his visits to Nagorno-Karabakh and for his articles concerning Nagorno-Karabakh.
Alvina Gyulumyan (Judge): Now my questions to the government.
Alvina Gyulumyan (Judge): Our first question concerns the passports.
Alvina Gyulumyan (Judge): In which cases a resident of, in which concrete cases, a resident of Nagorno-Karabakh can be issued with a passport of the Republic of Armenia?
Alvina Gyulumyan (Judge): And do you have any figures how many of them have been issued with it?
Alvina Gyulumyan (Judge): My second question may be not too much related to today's deliberation, because as court decided in his admissibility decision, we will be considering facts after ratification of convention.
Alvina Gyulumyan (Judge): But in any way, what would be your comments on the statement of Vazgen Manukyan, who was Armenian defense minister in October 1992, and who made statement in 2000 about union of armies in Gaia and Armenia, which is mentioned in the book Thomas De Waal, Black Garden, referred by applicants.
Alvina Gyulumyan (Judge): And also, more concrete question, could you explain how it was possible that the Armenian law enforcement agents operated in the case of Zalian and others in Nagorno-Karabakh and the regional, Sunni regional court of Armenia hold the hearing in Stepanakert?
Alvina Gyulumyan (Judge): And my last question, could you please compare the financial support which Nagorno-Karabakh gets from all Armenian fund and from other sources, namely from the government of the United States?
Dean Spielmann (JudgeP): Judge Spano.
Dean Spielmann (Judge): Thank you, Mr. President.
Dean Spielmann (Judge): I have one question for the applicants, and third-party interveners may respond if they so choose.
Dean Spielmann (Judge): The Applicants' Council cited paragraph 56 of this court's judgment in Loizidou v. Turkey.
Dean Spielmann (Judge): It's important of the submission that the effective control test does not necessitate a demonstration of detailed control over the policies and actions of local authorities in the disputed area.
Dean Spielmann (Judge): In paragraph 56 of Loizidou, the court stated, and I quote, it is not necessary to determine whether, as the applicant and the government of Cyprus have suggested, Turkey actually exercises detailed control over the policies and actions of the authorities of the TRC.
Dean Spielmann (Judge): It is obvious from the large number of troops engaged in active duties in northern Cyprus that her army exercises effective control over that part of the island.
Dean Spielmann (Judge): Such control, according to the relevant test and in the circumstances of the case, entails her responsibilities for the policies and actions of the TRC.
Dean Spielmann (Judge): In Al-Skeini, the court elaborated further, stating that the factual assessment of jurisdiction must be, and I quote from paragraphs 138 to 139, primarily based on the strength of the military's presence, as mentioned by counsel to the third-party intervener.
Dean Spielmann (Judge): My question on this basis is, I would kindly ask the applicants to explain as concretely as possible what they consider to be their strongest pieces of evidence from which the court would be able to draw sufficiently strong, clear, and concordant inferences as to the responding government's strength of its military presence in Nakorno-Karabakh in general and in Lachia in particular.
Dean Spielmann (Judge): Thank you.
Dean Spielmann (JudgeP): We will have now a 20 minute break and the court will resume the hearing at around 11.25.
Dean Spielmann (JudgeP): I will give the floor to the lawyers acting on behalf of the applicants and to the lawyers acting on behalf of the respondent government.
Dean Spielmann (JudgeP): Mr. Muller.
AP2 (Applicant): Mr. President, perhaps I can start with the learned Armenian judge's question concerning
AP2 (Applicant): the alleged ignorance of the lawyers, the applicant's lawyers, and my learned friend Mr. Robertson's claim about the lawyers' failure to go to the Armenian Republic to lodge claims.
AP2 (Applicant): Mr. Robertson is kind enough to submit that we all belong to a very experienced non-governmental
AP2 (Applicant): organization and yet at the same time he claims that we simply fail to bother to explore domestic remedies in Armenia.
AP2 (Applicant): That with respect is not the position, neither is it the position that we are ignorant of Armenia and its jurisdiction.
AP2 (Applicant): I myself have appeared in a number of cases before this court in relation to Armenia, including cases such as Meltek's.
AP2 (Applicant): The reason why in actual fact no remedies were exhausted in relation to this case was because we took the view, having regard to all the evidence in this case, that no remedies were identifiable whatsoever and certainly not effective.
AP2 (Applicant): And so perhaps I can begin my address by referring to the very paragraph that my learned friend Mr. Robertson referred to in suggesting somehow that the position of the lawyers in this case
AP2 (Applicant): was simply not to explore domestic remedies as a consequence of ignorance.
AP2 (Applicant): In fact, paragraph 151 reads as follows at the end.
AP2 (Applicant): They agreed to act in ECHR-related proceedings after a view had been taken as to whether Article 35 requirements concerning the exhaustion of domestic remedies had been satisfied or not.
AP2 (Applicant): The view arrived at for the reasons cited in these submissions was that there were no identifiable, let alone effective domestic remedies available capable of offering redress for the complaints raised with any prospect of reasonable success.
AP2 (Applicant): That is the position of the applicants.
AP2 (Applicant): It has absolutely nothing to do with the ignorance of the lawyers representing the applicants or indeed their reluctance to travel to Armenia.
AP2 (Applicant): It is also the consistent position as expressed in all the written pleadings for the last seven years.
AP2 (Applicant): So we say that allegation is both misleading.
AP2 (Applicant): I would also add that many of these lawyers are extremely experienced in relation to the issue of exhaustion of domestic remedies.
AP2 (Applicant): Myself together with many others were involved in the case of Aktovar and fully understand the obligations to exhaust domestic remedies.
AP2 (Applicant): It may well be prudent to read the statement of Katrina Vine in relation to the exhaustion of domestic remedies and also the position of the NGO.
AP2 (Applicant): As to the suggestion that the courts, judges and lawyers of Armenia are waiting to process the case and want to be given an opportunity to show that they can give justice for the complaint, perhaps I can just refer to one or two of our submissions in relation to the position of Armenia and by way of this answer the learned judge's question from Armenia concerning the readiness of judges to deal with these issues.
AP2 (Applicant): First of all I refer to Annex 1 of Mrs. Vine's statement in which she makes clear that her
AP2 (Applicant): attempt to try and make further inquiries of other individuals who might be willing to assist in this case ran into severe problems for fear of being identified by the Armenian government as being involved in these proceedings.
AP2 (Applicant): This reticence to become involved in the case in any way by such a wide range of suitable qualified experts is a poignant reminder of the insidious undercurrent of discrimination by the Armenian government officials against anyone choosing to be affiliated in any form with the applicant's cause of returning to their homeland.
AP2 (Applicant): I would also point the court to the statement of the UN special rapporteur concerning the role of the human rights defender because that also gives flavor to the present position in respect of cases such as this.
AP2 (Applicant): Those could be found at paragraph 138 of our written submissions of 2013.
AP2 (Applicant): In particular he quotes, the special rapporteur is disturbed regarding reports of violence against human rights defenders, in particular journalists, and of the failure to fully and thoroughly investigate and prosecute such incidences.
AP2 (Applicant): I also refer to the American Bar Association that did extensive research over the many years concerning judicial reform and the independence of the judiciary where it refers to a persistent problem concerning the independence of the judiciary.
AP2 (Applicant): I don't propose to give any evidence in this case as to whether or not judges who have filed evidence in this case are lying or not.
AP2 (Applicant): It is a matter of weight and relevance for this court.
AP2 (Applicant): This court can well judge whether or not witness statements are supported by the facts on the ground in this case and indeed whether or not they come from a party pre-party.
AP2 (Applicant): Just in relation to Malani Friend's submissions concerning the time as to when to judge the issue of exhaustion, we say nothing should depart from the normal rule that that is when the application was lodged.
AP2 (Applicant): And I will once again refer the court to the question posed in 2006 of the respondent that what were the available remedies available to the applicant.
AP2 (Applicant): And in that reply, not only did the respondent fail to identify any remedies whatsoever of any nature, let alone deal with their effectiveness, they made the statement manifestly that a Malminia's writ does not run in the courts of NKR and nothing should be said that be taken that they had jurisdiction over that particular territory.
AP2 (Applicant): It was only until 2007 when in actual fact they cited a number of cases which they said revealed the existence of effective remedies.
AP2 (Applicant): And perhaps I could just ask Malani Friend, Ms Butler, to address the court on that point.