TrustHLT/LaCour huggingface dataset:
GR2 (Government): If any applicant could evade Article 35 by pleading poverty or the incapacity of its legal advisors, then the article would become a dead letter.
GR2 (Government): And the court itself would have to take on the burden of sifting the evidence, which should be done, of course, through local domestic courts.
GR2 (Government): It is, as I say, had these London-based lawyers who say, in excusing the fact that they haven't taken any action, that they're ignorant of Armenian and Nagora Karabakh law, had they bothered to come to Euroban, they would have found the bar and the bench as independent and as unafraid to take on the government as in the UK.
GR2 (Government): That concession, incidentally, that they didn't know Armenian or Nagora Karabakh law is found in paragraphs 151 and 152 of their October 6 statement last year.
GR2 (Government): Turning to the remedies available in Nagora Karabakh, the applicants are free to sue there.
GR2 (Government): And the evidence that we've put on from law defenders in Stepanakert might persuade them that they had a case they could bring.
GR2 (Government): And they can bring.
GR2 (Government): They're free to sue.
GR2 (Government): They can obtain not only compensation.
GR2 (Government): This is important for their remedy.
GR2 (Government): In Nagora Karabakh, the court can restore their land.
GR2 (Government): It will order the local authority to re-register the land in their favor.
GR2 (Government): There's an independent court system in Nagora Karabakh.
GR2 (Government): All our evidence shows it applies the European Convention.
GR2 (Government): The president of the Supreme Court and the local judge in Lachin, who's made a statement, say that the applicants are free to commence their action, that their remedies would include an order for repossession of their land.
GR2 (Government): So the Lachin judge said in terms that he would order a discovery of government documents and allow them to cross-examine any government witness.
GR2 (Government): He's at appendix nine of our 2012 submission.
GR2 (Government): The chairman of the new, of the NK Chamber of Advocates says he's acted in the past for his areas and he would act for them in land claims.
GR2 (Government): And what is so important, particularly having heard from the applicant's lawyers that we can't point to one case of an exeri succeeding, not true, we point to two cases which are almost identical to the claim.
GR2 (Government): These cases, Zafarov, he was an exeri who had lived in a house built by his father in 1961, in Nagora Karabakh.
GR2 (Government): He fled as the war heated up.
GR2 (Government): And then in 1991, he asked NK authorities whether he could return.
GR2 (Government): They assured him that he could, that there was no ban on visiting NK.
GR2 (Government): In 2005, he returned, identified his house and asked the authority to give it back.
GR2 (Government): The authority refused.
GR2 (Government): He took the case to court.
GR2 (Government): After careful examination of his claim, the court granted him an order, declaring him the owner of the land and the house and ordering the government authority to register it in his name.
GR2 (Government): So he had exactly the remedy that these claimants claim that they can't get.
GR2 (Government): He went back, no problem.
GR2 (Government): So too did Mr. Aleev.
GR2 (Government): He fled in 1990, stayed in Russia in 2002.
GR2 (Government): He says he made inquiries, discovered there was no prohibition on him visiting.
GR2 (Government): He sought registration and the court ordered the Nagora Karabakh army to re-register the land they were occupying in his name.
GR2 (Government): So these two cases, and we give the details of them, show conclusively that Azeris, in exactly the same position as the applicants, have domestic remedies in Nagora Karabakh, which are accessible, effective, and provide a reasonable prospect of success because they did succeed.
GR2 (Government): Mr. Zafarov and Mr. Aleev read their cases
GR2 (Government): and there's a complete reputation of the claims that they couldn't come back to Nagora Karabakh and that they don't have domestic remedies there.
GR2 (Government): They say, oh, the Armenian authorities will refuse us the right to return.
GR2 (Government): We put on a statement, Appendix 13, from the Minister of Nagora Karabakh explaining that that was a bargaining chip in the Minsk negotiations, had nothing to do with the rights of individual Azeris to come back to Nagora Karabakh and claim their land.
GR2 (Government): Two cases we've given exactly almost the same as these applicants where they have got their land back from the Nagora Karabakh courts.
GR2 (Government): So Zafarov and Aleev cases prove that domestic remedies are theirs for the asking.
GR2 (Government): They've just never asked, they've never inquired of lawyers who have any knowledge of what's going on in Nagora Karabakh.
GR2 (Government): Of course, 11,000 tourists leave from Stepanakert to go to Stepanakert each year.
GR2 (Government): It's a wonderful place with thousand-year-old churches and so forth.
GR2 (Government): It's ridiculous to suggest that there's any difficulty in getting there.
GR2 (Government): Baroness Cox, who runs a charity there, makes a statement to that effect.
GR2 (Government): So, but the applicants say, at paragraph 151, and I quote, moreover, for the avoidance of doubt, the lawyers working on the case are qualified in the UK and do not have expertise in the legal system of Armenia or NK, unquote.
GR2 (Government): This can't be a ground for exemption from the requirement to exhaust domestic remedies.
GR2 (Government): Otherwise, anyone who chooses to complain against any state would say, oh, I'm absolved from compliance with Article 35 because I'm poor and my lawyers are underfunded and don't know anything about the domestic law remedies they're meant to exhaust.
GR2 (Government): If that plea were ever upheld by the court, Article 35 would simply be a dead letter.
GR2 (Government): So let us conclude on this first point by saying that our evidence shows the courts of Armenia and Nagorno-Karabakh are independent and impartial.
GR2 (Government): They do afford these remedies.
GR2 (Government): Lawyers are willing and able to take action against the government, have done so with success.
GR2 (Government): And it's conceded that the applicants have made no attempt whatsoever to go for their remedies in those countries.
GR2 (Government): Turning to the court's second question on extraterritorial jurisdiction, Armenia's adamant case is that no military units are in Nagorno-Karabakh or the occupied territories, that its conscripts, there are conscripts under the 1994 Status of Forces Agreement, which we have exhibited.
GR2 (Government): There are several hundred conscripts in Nagorno-Karabakh who are serving in the Armenian forces.
GR2 (Government): And there are about 1,000, we have identified from a Nagorno-Karabakh general, that about 1,000 Armenian conscripts who are serving under the control of the Nagorno-Karabakh Defense Force, about 5% of the Nagorno-Karabakh army.
GR2 (Government): And that, you will appreciate, ladies and gentlemen, these two governments have forces poised in military readiness.
GR2 (Government): And there are limits to which the applicants can act as stalking horses for the Azeri military in finding out information about other forces.
GR2 (Government): But we have produced evidence that confirms that that is the limit of service in Nagorno-Karabakh.
GR2 (Government): 1,000 conscripts doing their two-year national service, not in any position of significance in the Nagorno-Karabakh forces.
GR2 (Government): There is not a single unit of the Armenian army in Nagorno-Karabakh or the occupied territories.
GR2 (Government): That is our case.
GR2 (Government): And we are prepared.
GR2 (Government): You've seen the very distinguished generals and ministers who confirm it.
GR2 (Government): The applicants originally suggested that the court, if it decides that they're absolved from exhausting domestic remedies, should go on location fact-finding.
GR2 (Government): And we would very much support that.
GR2 (Government): If this court is minded to make a determination on effective control, please come to Nagorno-Karabakh through the agencies that were used by the court in the Cyprus and Turkey cases.
GR2 (Government): And in other cases, it's quite wrong in our respectful submission for the court to decide effective control without going and hearing the evidence, hearing it cross-examined, examining through its investigative methods.
GR2 (Government): The problem we have is that the applicants and the interveners have relied entirely upon hearsay, upon politicians' statements, on misstated data like Mr. Gherigossian.
GR2 (Government): It was amusing in a way and sad in another way that a leading NGO said that 10,000 of the Nagorno-Karabakh Defense Force came from Armenia.
GR2 (Government): And this was footnoted, although the applicants didn't say so.
GR2 (Government): This was footnoted to Mr. Gherigossian.
GR2 (Government): Well, we actually tracked him down.
GR2 (Government): And if you read his statement, you find that he didn't say or mean anything of the sort.
GR2 (Government): He says in his statement that you can't say because it's a military secret and that, anyway, he was talking about Armenians ethnically and not Armenians from Armenia.
GR2 (Government): So that is the kind of propaganda statement that we are faced with.
GR2 (Government): It's not evidence.
GR2 (Government): Evidence comes from people who are prepared to say, I know of my own knowledge that this is the case, and I'm prepared to come and face examination over it.
GR2 (Government): Not footnotes.
GR2 (Government): Footnote after footnote.
GR2 (Government): No.
GR2 (Government): Charles Blandy.
GR2 (Government): Who is Charles Blandy?
GR2 (Government): He's an old British soldier who seems to be working for not a world famous organization who's made this statement about the Nagora-Karabakh Defense Force having never gone to Nagora-Karabakh and not giving the authority for the statement.
GR2 (Government): And this Charles W. Blandy is set out as evidence
GR2 (Government): that it's got a lot of Armenians.
GR2 (Government): This is not evidence at all.
GR2 (Government): This is not the way courts should conduct themselves or should be asked to conduct themselves on the basis of names without any kind of knowledge of their experience, of their competence, of their expertise.
GR2 (Government): We've put bodies in front of the court in the form of witness statements and witnesses who are prepared to say on oath, if it's possible, that their statements are true, that there is not one Armenian unit in Nagora-Karabakh.
GR2 (Government): There were 30,000, remember, Turkish soldiers in northern Cyprus.
GR2 (Government): It was a military occupation.
GR2 (Government): There is no military occupation.
GR2 (Government): You may have noticed the statement by that courageous lady who has been for so many years, since 1990, worked for an NGO in Stepanakert with Azeris.
GR2 (Government): And her independence of the Nagora-Karabakh government cannot be in doubt.
GR2 (Government): And she said, there's no question.
GR2 (Government): There are no Armenian troops on the streets.
GR2 (Government): There is no Armenian control of Nagora-Karabakh.
GR2 (Government): I should make clear, it's been suggested that we want the court to adopt the ICJ approach to effective control.
GR2 (Government): We suggest that, but we haven't nailed our colors to that mast.
GR2 (Government): We succeed on any view of effective control, because the statements from the Nagora-Karabakh authorities show that Nagora-Karabakh is independent, that it is not occupied by Armenian forces.
GR2 (Government): It is not, as the interveners suggest, a puppet state.
GR2 (Government): It is a genuine de facto government, elected democratically, observed by European observers to be a democratic country, to be democratic elections.
GR2 (Government): And we have put up the independent evidence of Mr. Harry Burcu-Marcu, who is a Romanian expert,
GR2 (Government): military expert.
GR2 (Government): And he's given a very long and authoritative report confirming there is no control by the Armenian government or armed forces over NK or its defense army.
GR2 (Government): The latter is independent and professional and under independent command.
GR2 (Government): Dr. Burcu-Marcu is, of course, willing to assist
GR2 (Government): if any fact-finding exercise is taken.
GR2 (Government): Of course, they talk in their evidences full of stories, press clippings about military exercises, parades, attendance by leaders at each other's celebrations.
GR2 (Government): This is exactly what could be expected of friendly neighboring states united against a common and saber-rappling enemy.
GR2 (Government): Wherever countries have military alliances, you find these shared training sessions and parades and so on.
GR2 (Government): So in terms of our case on effective control, we say that the status of forces agreement, which provides for conscripts to serve part of their time in the other army, doesn't for a moment place Armenia in effective control.
GR2 (Government): The fact that that agreement requires Armenian courts to punish misbehaving Armenian conscripts serving in Nagorno-Karabakh is common to status of forces agreement.
GR2 (Government): America has status of forces agreement with most European states requiring that disciplinary matters be under the American prosecutors.
GR2 (Government): It's a reflection of the fact that Armenia takes responsibility for the behavior of its conscripts wherever they are serving.
GR2 (Government): So the less important matters pointed to by the applicants, the All-Armenian Fund.
GR2 (Government): This is a charitable organization so that the diaspora can build roads, hospitals, and schools.
GR2 (Government): Exhibit L by the director, statement by the director of the fund, says we wouldn't get as much money if anyone thought it was under government control.
GR2 (Government): 25% of the members of the board are from the government.
GR2 (Government): But he says donors generally choose their own target to choose what they want their money to go to.
GR2 (Government): So it can't be suggested that this gives.
GR2 (Government): And the United States pays about as much to Nagorno-Karabakh.
GR2 (Government): It can't be suggested that they have effective control through charitable deeds.
GR2 (Government): As for passports, we've demonstrated the issuance of passports to NK citizens is only done in certain specific circumstances through a highly formal process by no means as of right.
GR2 (Government): It's a humanitarian gesture because NK passports are not internationally recognized.
GR2 (Government): Karabakhians who need hospital treatment abroad or in the Olympics and need passports to compete are given them.
GR2 (Government): On the issue of political ties, well, that's unsurprising.
GR2 (Government): And it's not a basis for excessive jurisdiction.
GR2 (Government): So far as the evidence is concerned, the Lechin judges and police chief and constitutional authorities all say that they are independent, that Armenia has no influence.
GR2 (Government): The OSCE investigation, which is exhibit L in our 2013 submissions, they went there, the ACSE, and they concluded that Armenia exercises no control over the locality.
GR2 (Government): So finally, we focused, of course, on the issues, the jurisdictional issues that the court has asked us to look at.
GR2 (Government): If it's undecided, if it's against us on domestic remedies and considers extraterritorial jurisdiction as a possibility, we request it, as the applicants did, to undertake a fact-finding exercise before deciding that Armenia has effective control, because that will show it hasn't.
GR2 (Government): So far, finally, as the victims are concerned, victim status is denied.
GR2 (Government): And those admitted contraventions and confusions in the victim's evidence, alleged victim's evidence, can only be decided at first instance.
GR2 (Government): So to conclude, let me merely say that in this case, Article 35 is no mere technical legal bar.
GR2 (Government): It can offer a way forward for this intractable conflict that diplomats can't solve.
GR2 (Government): There can be no peace in this area without local justice.
GR2 (Government): If Azeris, like the applicants, and like Mr. Zafarov
GR2 (Government): and Mr. Aleyev, who succeeded, can go to local courts
GR2 (Government): and receive justice from independent judges, they'll see the rule of human rights overcoming the raw hatreds of ethnic war.
GR2 (Government): That is what this court should encourage and supervise, the claims of Azeris being fairly tried in Yerevan and Stepanakert, and the claims of Armenians being fairly tried in Baku.
GR2 (Government): Then and only then can justice, local justice, conduce to peace.
GR2 (Government): Armenia and Nagorno-Karabakh have independent judges, courageous lawyers, and public defenders.
GR2 (Government): They want to be given the opportunity to show that they can do justice to the claims of the applicants.
GR2 (Government): And then and only then, with the court playing its true supervisory role over domestic courts as the guarantor that they'll do right, can the fears and suspicions engendered by this wretched conflict be put to rest.
GR2 (Government): The rights of the most vulnerable are best protected, as Eleanor Roosevelt once observed, by local courts, domestic courts, supervised in this case by this court.
Dean Spielmann (JudgeP): Thank you Mr. Robertson and I call Mr. Asgarov.
TP3 (ThirdParty): Mr. President, on behalf of the intervening state,
TP3 (ThirdParty): the government of Azerbaijan, Mr. Malcolm Shaw of QC will speak on jurisdiction,
TP3 (ThirdParty): and Mr. Gabriel Lansky will cover the issue of remedies.
TP2 (ThirdParty): Mr. President, members of the court,
TP2 (ThirdParty): it's a privilege to be before you again.
TP2 (ThirdParty): I have the honor to appear on behalf of the Republic of Azerbaijan, the intervening state.
TP2 (ThirdParty): This case is about three things, jurisdiction, jurisdiction, and jurisdiction.
TP2 (ThirdParty): It is at the heart of this seminal case, and the court will have to determine whether or not a significant part of the internationally recognized territory of one contracting party, occupied in reality by another contracting party, remains within or is excluded from the protection of the European Convention on Human Rights.
TP2 (ThirdParty): No more, no less.
TP2 (ThirdParty): All of the territory in question falls within the territories covered by the European Convention.
TP2 (ThirdParty): No state can purport to subcontract out responsibilities to a non-state entity with regard to the territory of another state, and then claim to be free of the constraints of the convention.
TP2 (ThirdParty): There can be no legal black holes in the lands of the European Convention on Human Rights.
TP2 (ThirdParty): It does not need me to tell this court that jurisdiction has a specific meaning under Article I of the convention, building upon, but moving a notch above, traditional international law principles of state responsibility.
TP2 (ThirdParty): General international law has developed principles of state responsibility, exemplified in the Nicaragua and Bosnian genocide cases before the ICJ.
TP2 (ThirdParty): However, it is now accepted that specific human rights regimes, complete with binding mechanisms, may add value to these principles.
TP2 (ThirdParty): This has been shown in the Tadich case before the ICTY, and in established and respected and consistent judgments of this court, including Loizidou, Issa, and most recently, Al-Skaini.
TP2 (ThirdParty): Incidentally, it has affected not just the special definition given to jurisdiction as a term of art in Article I, but also the position with regard to the effect on reservations to specific human rights treaties.
TP2 (ThirdParty): The door to reverse this progressive development has surely closed.
TP2 (ThirdParty): The Cyprus situation is analogous to Nagorno-Karabakh, with one difference.
TP2 (ThirdParty): In the former case, Turkey was transparent about its presence in northern Cyprus.
TP2 (ThirdParty): In this case, Armenia seeks to draw a veil of secrecy over what is widely known.
TP2 (ThirdParty): The NKR cannot function without Armenia's existential backing, which is military, economic, political, and financial.
TP2 (ThirdParty): The two are extraordinarily intertwined.
TP2 (ThirdParty): What is even more blatant here is that the Lachin area, where the applicants live and where their property was and is situated, lies between the NKR and Armenia proper.
TP2 (ThirdParty): Armenia's arguments before this court is that it is the NKR which effectively controls the relevant area.
TP2 (ThirdParty): We argue that Armenia, directly or indirectly through its subordinate local administration, the NKR, is in such effective control for the purposes of Article I.
TP2 (ThirdParty): This falls squarely within the paradigm established by this court in Lousidou, Cyprus against Turkey, Ilashgu, and Al-Skaini.
TP2 (ThirdParty): But what is the legal test applied by the court?
TP2 (ThirdParty): In Al-Skaini, now the leading case on extraterritorial jurisdiction, the court emphasized that such jurisdiction and responsibility would occur where a state, through its agents, exercises control and authority.
TP2 (ThirdParty): Further and critically, the court underlines that Article I would apply where a contracting state exercised effective control of an area outside its national territory.
TP2 (ThirdParty): Its obligations under the convention derives from the fact of such control, whether exercised directly through their own armed forces or through a subordinate local administration.
TP2 (ThirdParty): It is not necessary to demonstrate detailed control over the policies and actions of this subordinate local administration.
TP2 (ThirdParty): It is a question of fact whether a contracting state exercises effective control over an area outside its own territory.
TP2 (ThirdParty): In determining this, the court has said it will have primary reference to the strength of the state's military presence and activities in the area, while other indicators may also be relevant, such as the military, economic, and political support for the local subordinate administration.
TP2 (ThirdParty): The court, therefore, has to examine the facts of the case in order to determine what is the reality and whether Armenia is in reality pulling the strings.
TP2 (ThirdParty): I do not propose to repeat all of our evidence presented over the years, up to and including December 2013.
TP2 (ThirdParty): I will merely point to some of the essential facts grouped in terms of the court's own categories.
TP2 (ThirdParty): Military presence, something which I see is simply not denied by the respondent state.
TP2 (ThirdParty): The series of proposals from the Minsk peace process in the late 1990s all called for the withdrawal of the armed forces of Armenia to within the borders of the Republic of Armenia.
TP2 (ThirdParty): Various NGO reports have demonstrated the extensive presence of conscript forces in the NKR, something which is now admitted.
TP2 (ThirdParty): And the high degree of integration between the forces of Armenia and Nagorno-Karabakh in the supply of weaponry.
TP2 (ThirdParty): This court has found that the Republic of Armenian forces serve in the occupied territories and indeed that the detention, questioning, and prosecution of such soldiers took place in such territories in the Haratunian and Zalyan cases.
TP2 (ThirdParty): A series of serious internal incidents involving the deaths of Republic of Armenian forces located in the occupied Kozhavand district of Azerbaijan was noted in the Armenian media in 2010.
TP2 (ThirdParty): Armenian soldiers serving in the NKR have voted in Republic of Armenian elections.
TP2 (ThirdParty): In April 2012, a resolution of the European Parliament was adopted within the context of a proposed EU-Armenia association agreement.