TrustHLT/LaCour huggingface dataset:
AP2 (Applicant): The government has failed to produce any information about appropriate measures it has taken to reduce the general negative climate against Armenians in Azerbaijan after ratifying the convention in 2002.
AP2 (Applicant): In 2006 report, the European Commission Against Racism and Intolerance stated that judicial proceedings opened by Armenians trying to secure their rights are set to systematically fail due to the general negative climate against Armenians.
AP2 (Applicant): Any recourse to domestic proceedings in Azerbaijan would have had no prospect of success given the existing discriminatory practice towards Armenians in Azerbaijan.
AP2 (Applicant): For these reasons, we say that there are no domestic remedies that are available, effective, and sufficient, and that the applicant's right to an effective remedy under Article 13 has been violated.
AP2 (Applicant): Mr. President, that concludes my submissions.
AP2 (Applicant): And I am now going to hand over to Mr. Grigoryan to continue.
AP1 (Applicant): Mr. President, I shall make submissions on applicants'
AP1 (Applicant): complaint under Article 14, following by brief submissions on their claim under Article 41.
AP1 (Applicant): The applicants have consistently maintained that they have been the victims of the discriminatory treatment on the basis of their Armenian ethnic origin, in violation of Article 14, taken together with Article 1 of Protocol 1, Article 8.
AP1 (Applicant): As a result of discrimination manifested against the applicants on the ground of their Armenian ethnic origin, they have been firstly restricted from returning to their home and to their relatives' graves since 15 April 2002.
AP1 (Applicant): And secondly, they have never been provided with a remedy to redress their situation.
AP1 (Applicant): And thirdly, they have not been given any material redress for their losses.
AP1 (Applicant): In this case, the clear difference in treatment is a fundamental aspect of it.
AP1 (Applicant): The Sarksan family, as ethnic Armenians, have been and still are treated differently as compared to non-ethnic Armenians within the jurisdiction of the government, who face the same fate as them.
AP1 (Applicant): Who lost their property, had to leave their homes as a result of the conflict.
AP1 (Applicant): The evidence before the court, including the reports of international organizations, such as UNHCR, the Third Parliamentary Assembly Commissioner for Human Rights, and the European Commission Against Racism and Intolerance, establishes that the convention violations suffered by the applicant are the result of the government's discriminatory policies and practice.
AP1 (Applicant): The difference in treatment has primarily been manifested in the expulsion of a very large number of ethnic Armenians from their homes on the territory under the control of the government since early 1990s, and the inability of those Armenians to return to their homes or otherwise obtain redress.
AP1 (Applicant): Figures published by ECRI show that about 270,000 ethnic Armenians had left Azerbaijani-controlled territories by 1999 as a result of the conflict.
AP1 (Applicant): There has not been a single example of an ethnic Armenian returning since, or being provided with compensation or alternative means of redress.
AP1 (Applicant): The reports of international organizations, such as Commissioner for Human Rights, ECRI, and UNHCR, show that since 2002, displaced persons living on the territory controlled by Azerbaijan have benefited from governmental assistance of various forms, including housing and other essential services.
AP1 (Applicant): For example, in 2007, more than half a million IDPs received different forms of government's assistance.
AP1 (Applicant): While the steps taken by the government are highly loadable, our point is that this contrasts with zero provision with someone in Mr. Sargsyan's position,
AP1 (Applicant): an ethnic Armenian who's been a victim of the same conflict.
AP1 (Applicant): As to the question whether the government can provide any objective and reasonable justification for such a difference in treatment, whether it pursued a legitimate aim, and whether the means employed were proportionate to that aim, the answer, most emphatically, is no.
AP1 (Applicant): No justification has ever been provided.
AP1 (Applicant): And we submit that there is no evidence whatsoever to establish that the government has taken any measure to combat the ethnic discrimination and racism, which is evident in this case.
AP1 (Applicant): It has clearly failed to comply with its positive obligations under Article 14.
AP1 (Applicant): Mr. President, I now turn briefly
AP1 (Applicant): to the applicants' just satisfaction claim under Article 41.
AP1 (Applicant): The principal aspect of their claim is that, first and foremost, the applicants have sought the restitution of their property, the right to return to the village of Gulistan, and to have access to the control, use, and enjoyment of their home and property, as well as access to the graves of their relatives.
AP1 (Applicant): The written...
AP1 (Applicant): The applicants also seek compensation for their losses, as set out in our written submissions.
AP1 (Applicant): We note that it is quite possible for this court to order restitution and compensation failing restitution, as the court did, for example, in Brumarescu against Romania or in Saganadze against Georgia cases.
AP1 (Applicant): Mr. President, concluding our submissions,
AP1 (Applicant): we would refer also to court's practice under Article 46 of the Convention to refer to the general measures in cases where there are widespread or systemic practices which are incompatible with the Convention.
AP1 (Applicant): For example, in Ananyev against Russia, in applying Article 46, the court took great pains to assess what the causes were of the very poor conditions of remand centres, and also what general measures were required to address them.
AP1 (Applicant): We say that the circumstances of this case would also justify application of Article 46.
AP1 (Applicant): Although it would be a matter for the court as to what specific general measures to stipulate, we recall that in Senide's arrestes against Turkey, the court required the government to introduce a remedy which secured genuinely effective redress for the Convention violations identified.
AP1 (Applicant): Mr. President, that concludes our submissions
AP1 (Applicant): on behalf of the Opposition.
Dean Spielmann (JudgeP): I call Professor Shaw.
GR2 (Government): Mr. President, members of the court, it is an honor to be before you again.
GR2 (Government): I will deal with the Article 1 jurisdictional issue and will make the following points.
GR2 (Government): First, that the normal jurisdictional competence of the territorial state may be displaced exceptionally.
GR2 (Government): Second, this may happen as a matter of fact, not only with regard to areas under the occupation of other parties, but also with regard to areas, small areas rendered inaccessible by circumstances.
GR2 (Government): Thirdly, that the distinguishing feature of this case is that the site of the property claimed is on the line of contact, the ceasefire line, and thus possessed of special features.
GR2 (Government): Fourthly, that any positive obligations that Azerbaijan may be deemed to hold in such circumstances under Article 1 are being respected.
GR2 (Government): This is not a case like Shiragov in Armenia, which raises fundamental questions as to the jurisdiction and responsibility of the respondent state, which seeks to evade responsibility by the subterfuge of a subordinate local administration.
GR2 (Government): This case is concerned with the margins, with the periphery, both in legal and factual terms.
GR2 (Government): This also is not Moldova.
GR2 (Government): We have here hundreds of thousands of refugees and IDPs from both Azerbaijan and Armenia, not a few dozens.
GR2 (Government): This is also not a situation of an Armenian refugee from Baku, an area under Azerbaijan effective control far away from the ceasefire line, a militarily volatile line.
Dean Spielmann (JudgeP): Professor Shaw, the members of your team might come closer to the court if they want to show points on the map. It's quite a distance for us to...
Dean Spielmann (JudgeP): Not too close, not too close because otherwise my colleagues on the left side will not be able to see it, but maybe a little bit more in the middle. If that is convenient for you, Professor.
GR2 (Government): Thank you very much, Mr. President. I'm obliged.
GR2 (Government): We need to get a sense of the area. Our July 2012 topographical map, I can't say which
GR2 (Government): one it is. I think it's the, is it that one? Yeah, the one on my extreme right. And figure
GR2 (Government): 12 of the triple A.S. report commissioned by the court shows clearly that there are
GR2 (Government): no Azerbaijani forces in the village of Gulistan, while Armenian forces in the slopes opposite, as they are in the woods, are not shown, as they are impervious to satellite observation.
GR2 (Government): The village of Gulistan is one side of a mountainside sloping deeply down to the river. On the other
GR2 (Government): side of the river, according to the material presented by the other side on the 18th of October 2013, lie the Armenian forces on a steeply rising slope. This is also shown by
GR2 (Government): videos which both sides have shown to the court. The clear, thank you very much, the
GR2 (Government): clear consequence of this on Armenia's own documentation is that Gulistan is fully exposed to fire from the military positions of the Armenian forces, who are situated at the very least along the rising slope of the river. I do not go into the question as to whether
GR2 (Government): these are NKR, so-called Republic of Nagorno-Karabakh forces, or NKR forces under Republic of Armenia command. We've provided plenty of evidence on this in the Shiragov case. The following
GR2 (Government): facts appear clearly from the AAAS.
Dean Spielmann (JudgeP): Professor Shaw, excuse me for interrupting you. I just want to ask the applicants and
Dean Spielmann (JudgeP): the third party government if they didn't have any objection that those maps were shown now and if they are... they are in the file also but I mean...
AP3 (Applicant): We don't have objections, we would like to have an opportunity to see them following the hearing and perhaps comment on them, because we couldn't see physically seeing what those maps were today.
Dean Spielmann (JudgeP): Yes, please continue, Professor Shaw.
GR2 (Government): The following facts appear clearly from the AAAS report commissioned by the court.
GR2 (Government): First, Gulistan lies fully and clearly, like all of the surrounding territory, within the internationally recognized sovereign territory of Azerbaijan.
GR2 (Government): Secondly, the area under immediate concern is very mountainous.
GR2 (Government): Thirdly, the area has been the object of sustained military activity.
GR2 (Government): Report notes, and I quote, throughout the period of analysis, 2012, 22 to 2012, evidence of military activity was apparent across much of the region surrounding the village of Gulistan.
GR2 (Government): Increases in all categories of military observations were noted in the period from 2005 to 2009.
GR2 (Government): And in the period 2009 to 2012.
GR2 (Government): Fourthly, as the report puts it, their analysis revealed the near total destruction of the village of Gulistan by 2005.
GR2 (Government): It is clear that the area is an active military one and thus dangerous to civilians.
GR2 (Government): This is admitted by the other side.
GR2 (Government): For example, the commander of the military unit of the NKR Defense Army, Mr. Hamlet Savoyan,
GR2 (Government): declared in his evidence provided in Annex 7 of Armenia's submissions July 2012, that while there were roads by which people can get to the village, I do not think, he said, that a civilian or military servant of Nagorno-Karabakh Republic can reach there because that's dangerous.
GR2 (Government): A civilian or military serviceman cannot go because there are minefields.
GR2 (Government): Also they, Azerbaijani military, will shoot.
GR2 (Government): We can't provide the security.
GR2 (Government): He continued, they, Azerbaijani forces, cannot guarantee the security of the civilians since the surrounding areas of the village are mined.
GR2 (Government): Of course, Azerbaijan does not accept the implication that the threats of shooting come from its side.
GR2 (Government): Leaving that aside, officials of the NKR clearly accept that the area is dangerous and inaccessible to civilians and military forces alike due both to the dangers of military confrontation and to the mining of the area.
GR2 (Government): The court has been provided with information showing how heavily the area of Gulistan is mined, and the view of the director of Azerbaijan's National Agency for Mine Action, that the village of Gulistan has been defined as an area with extensive mine and unexploded ordnance with no safe access.
GR2 (Government): Further there are regular incidents of violent outbreaks of firing across the line of contact, including in the Gulistan area.
GR2 (Government): It is an area where fighting erupts from time to time.
GR2 (Government): Jurisdiction under Article 1 is primarily territorial.
GR2 (Government): One of the exceptions is where a contracting party exercises effective overall control of an area of another state's territory, whether directly or indirectly through a subordinate local administration.
GR2 (Government): The normal territorial jurisdiction of a state, therefore, may be displaced where it is unable, as a matter of fact, to exercise control over its territory.
GR2 (Government): It is therefore Armenia which bears responsibility under the Convention for the Securing of Convention Rights in the areas of Azerbaijan it directly or indirectly controls.
GR2 (Government): The unusual feature in this case, as both Azerbaijan and Armenia agree, is that the village of Gulistan is located right on the line of contact.
GR2 (Government): Both Azerbaijani and Armenian maps agree on this.
GR2 (Government): There is some evidence from Armenian sources that the village itself was captured by Armenian forces during April 1993.
GR2 (Government): Azerbaijani sources state that the Azerbaijani army does not have free access to the village and can only monitor it from outside, and it is covered by Armenian snipers who have a clear view of the village across the river.
GR2 (Government): It can, therefore, in no way be concluded that Azerbaijan is in effective control of the village.
GR2 (Government): It cannot be responsible under Article 1 in the primary sense of the provision.
GR2 (Government): This is not a black hole or legal vacuum.
GR2 (Government): It is a very specific and very limited grey line along a ceasefire or militarily volatile line.
GR2 (Government): The Court has developed the notion of supplementary or subordinate responsibility with regard to a dispossessed sovereign, and I quote, to take all diplomatic, economic, judicial, or other measures that are in its power to take and in accordance with international law.
GR2 (Government): Such obligations, as the Court made clear in Azeri against Serbia, is fact-dependent.
GR2 (Government): I make the following points.
GR2 (Government): First, the issue is fact- and context-dependent.
GR2 (Government): Second, the necessary measures focus on opposition to the continuing occupation of Azerbaijani territories.
GR2 (Government): Third, as to the applicant and those in the same position, Azerbaijan has in place relevant mechanisms.
GR2 (Government): The Court underlined in Al-Ashqu that a fair balance has to be struck between the general interest and the interests of the individual.
GR2 (Government): The obligations must not be interpreted in a way to impose an impossible or disproportionate burden.
GR2 (Government): The particular context in this case concerns the situation around the village of Gulistan, which I have explained is right on the ceasefire line and thus highly dangerous.
GR2 (Government): Azerbaijan maintains it will be a gross dereliction of duty and a likely violation of Article 2, were it to permit civilians to enter the village.
GR2 (Government): The necessary measures have been analyzed by the Court as falling into two parts.
GR2 (Government): First, refraining from supporting the regime established by separatist forces, and secondly, seeking to reestablish control.
GR2 (Government): The clear, consistent, and continuing opposition of Azerbaijan to the unlawful occupation by Armenia of Nagorno-Karabakh and the surrounding territories, and to the separatist regime established as a result of Armenian arms and sustained by substantial aid from Armenia, is a matter of public record.
GR2 (Government): Armenia seeks to reestablish its control over its occupied territories by all diplomatic means possible.
GR2 (Government): This parallels the requirements laid down by the Court in Ilashko and in Ivantok.
GR2 (Government): In our submissions of October 2013, we have summarized the efforts made in this regard concerning the continuing Minsk process.
GR2 (Government): Azerbaijan is also committed to the Madrid Principles, one of which is the right of all internally displaced persons and refugees to return to their former places of residence.
GR2 (Government): Contrast this with Armenia's policy of planting settlers in the occupied territories.
GR2 (Government): Thirdly, with regard to the applicant, Azerbaijan has drawn attention to its order of November 1991, which is still in force.
GR2 (Government): This provides a legal framework for the private exchange of properties that were taking place, whereby individual refugees swap their properties.
GR2 (Government): By this way, Azerbaijan has sought to deal with a wholly exceptional and emergency situation.
GR2 (Government): Beyond this phenomenon, the normal rules of ownership operate.
GR2 (Government): This has been described to the Court, and the Court's summation may be found in Sargsyan, the admissibility decision of Paragraph 37 and following.
GR2 (Government): As far as the applicant is concerned, it is not known whether he obtained the house of an Azerbaijani refugee in the Armenian occupied areas.
GR2 (Government): His own house was not given to a refugee.
GR2 (Government): So far as is known, he is engaged in no such exchange transaction.
GR2 (Government): To the extent that the applicant maintains that his claimed home in Gulistan was expropriated during the conflict in the early 1990s, he is out of time.
GR2 (Government): Such an allegation is in any event denied.
GR2 (Government): No claim for compensation has indeed been received.
GR2 (Government): It is not possible in the circumstances to resolve the alleged claims of the applicant by specific judicial measures to safeguard his claimed interests, since these have not been under legal attack.
GR2 (Government): Only the practical circumstances prevent access to his property.
Dean Spielmann (JudgeP): Thank you, Professor.
Dean Spielmann (JudgeP): Thank you, Professor Lansky, you have the floor.
GR3 (Government): Mr. President, esteemed members of the court,
GR3 (Government): all what Mr. Professor Shaw explained
GR3 (Government): has, of course, direct impact on the right to effective remedies according to Article 13 of the Convention.
GR3 (Government): In his current application from 2006, the applicant admits that he has not attempted to exhaust local remedies.
GR3 (Government): Indeed, it is possible for ethnic Armenians to claim effectively their property rights other than, different than what the applicants previously declared.
GR3 (Government): We deny that there are no effective remedies available for the applicant.
GR3 (Government): The Azerbaijani law effectively protects the ownership and the possession of property.
GR3 (Government): We do have constitutional regulation and we do have civil court regulation, which sufficiently provides the possibility for indemnization.
GR3 (Government): Of course, one could distinguish between legal restitution and legal restitution.
GR3 (Government): Remedies and procedures here exist.
GR3 (Government): They are not exhausted.
GR3 (Government): And the restitution in kind, which in the specific situation in Kurdistan, is not possible because of the complete lack of control of Azerbaijan.
GR3 (Government): This does not change the situation that the legal framework for the legal restitution, pecuniary restitution, is existing.
GR3 (Government): There are more than 240 civil claims, which have been recorded by the Ministry of Justice between 1991 and 2006, do indeed show, and this is a difference to the situation in Armenia, do indeed show that those are also claims of ethnic Armenians.
GR3 (Government): Close to 100 of those are related to housing disputes.
GR3 (Government): And of course, we have to say the IDP, those are not cases of IDPs, but they are cases who fit into the situation and they do give remedy also for ethnic Armenians in parallel situations.
GR3 (Government): This is why we can conclude that the applicant did not use these existing effective remedies.
GR3 (Government): And you may declare, in our opinion, the application admissible also in this stage of the procedure.
GR3 (Government): Let's switch to Article 1 of the Protocol No. 1.
GR3 (Government): There is no other remedy, no other help than to go into the details of the depositions which you find in our case, and there are indeed a big number of inconsistencies and contradictions contained in the applicant's submissions, which seriously undermine the credibility of the application.
GR3 (Government): And the credibility of the applicant's evidence.
GR3 (Government): We have to, let me go through those contradictions.
GR3 (Government): The main declaration of the applicant alleged, he alleged that his home has been destroyed during the attack on Gulistan in 1992.
GR3 (Government): Now, subsequently, the arguments shifted and the arguments tried to develop the position that the house remained standing.
GR3 (Government): You can see in the film submitted by the Armenian government in 2012 that all the buildings in the village have been destroyed.
GR3 (Government): And you saw and you will see in our map, in this AAA report, that there is indeed a complete destruction of all buildings in Gulistan.
GR3 (Government): And if you see, there is, and we carefully studied this map, there is not a single place in which one could see a house which remained standing.
GR3 (Government): How could the applicant's cousin in that situation state that he is able to identify the applicant's home with the use of binoculars from the ceasefire line of Nagorno-Karabakh?
GR3 (Government): The applicant should explain you today how he could view this house.
GR3 (Government): This is an impossible feat and it has to be asked why they changed position into that very, very important piece of evidence.
GR3 (Government): And this is why we indeed say that the positions are not reliable.
GR3 (Government): There are other contradictions as well.
GR3 (Government): The assignment of the plot by the collective farm or by the father of the applicant.
GR3 (Government): How many rooms have been in the second floor of this house?
GR3 (Government): Three or four?
GR3 (Government): And how big was the size of land?
GR3 (Government): 1,500 square meters or around 800?
GR3 (Government): These and other contradictions show all in all that you cannot rely on these depositions and the main substantial basis of the claim is to be denied.
GR3 (Government): And other than the applicant tried to tell us there is no reliable title, be it there are no registration records in regard to the property.
GR3 (Government): There is no copy of the decision of the village council submitted by the applicant.
GR3 (Government): There is no copy of the registry of the village council.
GR3 (Government): Indeed, we believe and we are sure that the technical passports which are submitted are forged.