TrustHLT/LaCour huggingface dataset:
GR1 (Government): They have widely argued that while voters are free to express their political opinion by saying how they voted, and even to lie about it, they cannot allow to have recourse to mean of proving how they voted.
GR1 (Government): And in contrast to the new M-SHEAR legislation referred to by the applicant, under Hungarian law, individual voters' code-taking and sharing ballot selfies would not face criminal prosecution, so it is not a consequence.
GR1 (Government): The consequences would depend on various factors, but would essentially remain within the realm of election law, depending on the decision of local election commissions.
GR1 (Government): If the voter is caught taking a ballot selfie before putting his ballot in the ballot box, his ballot might be invalidated, and he might be given another ballot paper instead of his spoiled ballot.
GR1 (Government): If the voter is caught after having put his ballot in the box, the election committee might decide to subtract one vote from each candidate.
GR1 (Government): Only if ballot selfies are detected on a larger scale would the necessity of the involvement of the police arise as raising a suspicion of a ballot-buying scheme and the commission of a criminal offense against the integrity of the elections.
GR1 (Government): Finally, I would like to add that no opinion was published on the applicant's app which required the ballot papers to be included.
GR1 (Government): Anything could have been expressed with the same effect on any piece of paper to be photographed.
GR1 (Government): No contribution to the democratic process was made which could not have been made without the involvement of the picture of a marked ballot.
GR1 (Government): Moreover, no uncertified collection of voting data can constitute to the democratic process or contribute, sorry, to the democratic process.
GR1 (Government): On the contrary, it is suitable to increase distrust against the election organs.
GR1 (Government): An example of 4,000 voters cannot prove or disperse the proper counting of votes by the election organs.
GR1 (Government): Mr. President, honorable members of the court, thank you very much for your listening,
Guido Raimondi (JudgeP): I thank the parties who have assisted the court with their submissions and answers to the court's questions.
Dean Spielmann (JudgeP): I declare open the public hearing on the merits in the case of Chiragov and others against Armenia.
Dean Spielmann (JudgeP): The application was lodged with the court on the 6th of April, 2005, under Article 34 of the Convention by six Azerbaijani nationals, Mr. Elkhan Chiragov, Mr.
Dean Spielmann (JudgeP): Adishirin Chiragov, Mr. Ramiz Gebrayilov, Mr. Akif Hasanof,
Dean Spielmann (JudgeP): Mr. Fekhreddin Pashayev, and Mr. Qaraca Gabrayilov.
Dean Spielmann (JudgeP): The application was allocated to the third section of the court pursuant to Rule 52, Paragraph 1 of the Rules of the Court.
Dean Spielmann (JudgeP): It was communicated to the government on the 8th of June, 2006.
Dean Spielmann (JudgeP): On the 9th of March, 2010, the chamber decided to relinquish jurisdiction in favor of the Grand Chamber.
Dean Spielmann (JudgeP): The respondent government are represented by their agent, Mr. Gevorg Kostanyan,
Dean Spielmann (JudgeP): assisted by Mr. Emil Babayan, Deputy Prosecutor General
Dean Spielmann (JudgeP): of Armenia, and by Mr. Geoffrey Robertson QC,
Dean Spielmann (JudgeP): and Mr. Toby Collis, advisors.
Dean Spielmann (JudgeP): The applicants are represented by Mr. Mark Muller QC,
Dean Spielmann (JudgeP): Mr. Sudhanshu Swaroop, Mr. Michael Ivers,
Dean Spielmann (JudgeP): and Ms. Michelle Butler, counsel assisted by Ms. Catriona Vine,
Dean Spielmann (JudgeP): Mr. Bryony Poynor, Mr. Kerim Yildiz, Ms. Saniye Karakas,
Dean Spielmann (JudgeP): and Ms. Angela Evans, advisors.
Dean Spielmann (JudgeP): Two of the applicants, Mr. Akif Hasanof and Mr. Fekhreddin
Dean Spielmann (JudgeP): Pashayev, are also present.
Dean Spielmann (JudgeP): The applicants being of Azerbaijani nationality, the government of Azerbaijan have expressed the wish to take part in the written and oral proceedings as a third party in conformity with Article 36, Paragraph 1 of the Convention.
Dean Spielmann (JudgeP): They are represented by their agent, Mr. Chingiz Asgarov,
Dean Spielmann (JudgeP): assisted by Mr. Malcolm N. Shaw QC, Mr. Gabriel Lansky,
Dean Spielmann (JudgeP): Mr. Otari Gvaladze, Mr. Hannes Tretter,
Dean Spielmann (JudgeP): Ms. Tatiana Urdaneta Wittek, and Mr. Orkhan Ismayilov, advisor.
Dean Spielmann (JudgeP): I also welcome delegations from the Turkish High Council of Judges and Prosecutors.
Dean Spielmann (JudgeP): Having consulted the agents of the governments and the representatives of the applicants, I have determined the order of addresses as follows.
Dean Spielmann (JudgeP): Mr. Muller QC for the applicants will speak first.
Dean Spielmann (JudgeP): Then Mr. Kostanyan for the Armenian government.
Dean Spielmann (JudgeP): And finally, Mr. Asgarov for the third party government.
Dean Spielmann (JudgeP): I would explain that in addition to interpreting in the two official languages of the court, English and French, interpreting into Turkish has been authorized for the benefit of the group of Turkish judges and prosecutors.
Dean Spielmann (JudgeP): That interpreting is not arranged by the court.
Dean Spielmann (JudgeP): And no transcription of the oral translation will be included in the official record of the proceedings.
Dean Spielmann (JudgeP): I call Mr. Muller QC.
AP2 (Applicant): Mr. President, this case concerns an application by six Azeri Kurds who were forced to leave
AP2 (Applicant): their homes in Lachin in Nagorno-Karabakh after it came under attack and was ethnically annexed by Armenian-backed forces on the 18th of May, 1992.
AP2 (Applicant): They have been prevented from returning ever since, and therefore they complain that the loss of control over their property constitutes continuing violations by Armenia of Article 1, Protocol 1 and Article 8.
AP2 (Applicant): As the Court rightly noted in its judgment of 2011, it does not appear to be in dispute that the applicants had no access to their alleged homes and property since May of 1992.
AP2 (Applicant): Rather, the most contentious issues appear to be the exhaustion of domestic remedies and whether the respondent exercised overall control over Nagorno-Karabakh through a subordinate administration.
AP2 (Applicant): Mr. President, I will address you on exhaustion, Mr. Swarup on effective control, Mr. Ivers
AP2 (Applicant): on the merits, including victim status, while Michelle Butler stands ready to help with replies.
AP2 (Applicant): Let me first of all say a few words about what this case is and is not about.
AP2 (Applicant): We say this case is about impunity, the potential opening up of a human rights lacuna within convention machinery, and whether this Court is able to protect the rights of the most disadvantaged in our society during times of conflict and political transition.
AP2 (Applicant): For there can be no more disadvantaged category of persons than that of IDPs who have been forcibly removed from their land and their lives for the better part of two decades.
AP2 (Applicant): They have been condemned to a transitive, sancti-town existence with no hope of a better life other than through this Court.
AP2 (Applicant): Theirs is a fate that the people of Armenia know about all too well, and it is one that Armenia rightly reminds the world should never befall a minority population in Europe again.
AP2 (Applicant): It is important to note, however, that while this case may have profound consequences for the integrity of the European public order, it does not raise any novel points of law.
AP2 (Applicant): The respondents submit that the effect of control implies, and I quote, detailed direction or control over specific operations of the controlled entity, but there is no basis for departing from the settled case law of the Court.
AP2 (Applicant): The attempt to apply a different legal test legally obfuscates matters and detracts from the factual task at hand.
AP2 (Applicant): The applicant's primary case on jurisdiction is that Armenia exercises overall control over Nagorno-Karabakh through a subordinate local administration, as per Alasku.
AP2 (Applicant): It is therefore not necessary to show that Armenia controls every action in the NKR in detail.
AP2 (Applicant): This is entirely a question of fact, not law.
AP2 (Applicant): And in this regard, the Court should note the respondents' persistent failure to engage with either the applicant or the Court's question on effective control.
AP2 (Applicant): Take for example the following unrebutted admission.
AP2 (Applicant): In December 1989, the Armenian government declared to the world Nagorno-Karabakh to be an enclave to be part of a unified Armenian republic.
AP2 (Applicant): I do not need to remind this Court what then transpired.
AP2 (Applicant): Yet on 9 June 2006, in a reply to a question of a third chamber concerning remedies, the respondent declared, the government of the Republic of Armenia insists that the territory in question, particularly Nagorno-Karabakh and the surrounding territories, are not under the jurisdiction and control of Armenia.
AP2 (Applicant): How is the Court to reconcile these two statements?
AP2 (Applicant): Did a radical shift of policy occur in which Armenia gave up its historical claim over the territory?
AP2 (Applicant): Or do these statements form part of a consistent policy?
AP2 (Applicant): We say Armenia achieved its dream of a unified republic through the occupation of Nagorno-Karabakh, but thereafter crafted a subordinate separatist state to which it now denies legal, if not political, responsibility for its acts.
AP2 (Applicant): How else are we to explain the startling admission of the Armenian defense minister in October 2000, and I quote, that the public declarations that the ARA took no part in the war were purely for foreign consumption?
AP2 (Applicant): The failure to rebut these admissions, in conjunction with the unrebutted presumptions of fact in favor of the applicants, creates strong, clear, and concordant inferences that eviscerate the respondent's claim that the NKR is a wholly independent state.
AP2 (Applicant): Mr. Swarup will take the Court through the other pillars that demonstrate overall control,
AP2 (Applicant): but even if one was to apply a more detailed test, the applicants would still be able to demonstrate the respondent exercised detailed control over the NKR's policy towards Azeri IDPs, from the respondent's preventative policy towards their return, to the failed submission of the NKR legislature extinguishing property rights of the applicants in 1998, on to the 2012 new claim that the applicants were always at liberty to enter Armenia and Nagorno-Karabakh to file claims.
AP2 (Applicant): Indeed, far from establishing legal independence, the recently filed party pre-evidence of NKR officials merely demonstrates how easy it is for the respondent to subordinate those officials to its policy and legal needs as and when it needs to do so.
AP2 (Applicant): One need look no further than in the admission of Armenian IDPs from Syria into Nagorno-Karabakh after Armenia decided to take them in to find compelling evidence of the respondent's control over the return of IDPs to that territory.
AP2 (Applicant): Let me then turn to the issue of exhaustion.
AP2 (Applicant): The applicants say there were no identifiable remedies, let alone effective ones, to exhaust when they lodged their application.
AP2 (Applicant): As the Act of Aronilovsky makes clear, the applicant is only obliged to have recourse to remedies that are both accessible and effective.
AP2 (Applicant): Where a government alleges that the applicant has not exhausted domestic remedies, the burden falls upon it to prove that the remedy in question was an effective, available one capable of providing redress and which offered reasonable prospects of success.
AP2 (Applicant): That burden must also be had to the circumstances of the legal and political environment and the applicants.
AP2 (Applicant): On 9 June, the third section asked this question.
AP2 (Applicant): What remedies were or are still available to the applicants and would these remedies be effective?
AP2 (Applicant): In response, the respondent failed to identify any remedies and for seven years wrongly asserted that it was for the applicant to prove a negative.
AP2 (Applicant): This is a fundamental error of law and is demonstrative of the respondent's misconceived approach to the entire question of remedies.
AP2 (Applicant): As early as 27 February 2007, the applicants made clear that the government bore the burden of proof, that an administrative practice existed, and asked the Court to note the ethnicity of alleged returnees.
AP2 (Applicant): The respondent replied by citing several cases where people of Kurdish and Azeri nationality had applied to the respondent courts.
AP2 (Applicant): However, none of these cases relate to the right to return or the use of enjoyment of property.
AP2 (Applicant): At no stage either did the applicants claim that they were free to enter to pursue their rights.
AP2 (Applicant): In fact, at paragraph 26 and 33 of those submissions, it said, firstly, it was not prepared to recognize the claims of displaced people until a comprehensive final solution was agreed, including those of the applicants, and that the IDP issues had already been submitted to the OSCE.
AP2 (Applicant): Both these points were repeated in May 2010 and therefore represent settled policy.
AP2 (Applicant): We say this evidence, read together with the OSCE and UN resolutions and other reports, as a matter of official Armenian policy, that the applicants are not permitted or able to permanently return to their homes.
AP2 (Applicant): This refusal reflects an acknowledged official policy which amounts to administrative practice rendering any remedies theoretically available to them ineffective.
AP2 (Applicant): Indeed, many of the international reports relied upon, and not only well-researched, but prepared by reputable bodies, with access to intelligence.
AP2 (Applicant): The fact that the contents are not denied, but merely described as hearsay, speaks volumes.
AP2 (Applicant): Moreover, the territory from which the applicants were driven out remains a conflict zone.
AP2 (Applicant): It follows that without an internationally recognized right of return, any claim the applicants could have lodged in the courts of Armenia or Nagorno-Karabakh was bound to fail.
AP2 (Applicant): Thus, even if the respondents had identified an appropriate remedy, the prospects of reasonable sex would have been minimal.
AP2 (Applicant): Before 2012, the respondents asserted that the applicants' property rights had been extinguished by the enactment of local NKR laws, and that any remedy lay not with this court but the Minsk process.
AP2 (Applicant): Both of these submissions were rejected by the Grand Chamber.
AP2 (Applicant): After that judgment, however, the respondent recast its position on exhaustion for the first time and claimed that the applicants were always at liberty to enter Armenia and NKR to lodge claims.
AP2 (Applicant): No explanation was proffered.
AP2 (Applicant): We say that's because the respondent still held to an administrative practice that denied Azeri refugees the right to return.
AP2 (Applicant): But in order to make its 2012 submission work, it was forced to make a vacuous distinction between Azeri IDPs as a class of people who wish to return to their homeland, and those individuals who may wish to return to exercise their individual rights.
AP2 (Applicant): That with respect is a distinction without intellectual import.
AP2 (Applicant): The established rule is to consider exhaustion when the application was lost, and there is no retrospective legislation here to address historical wrongs.
AP2 (Applicant): Therefore there is no basis for departing from the normal rule.
AP2 (Applicant): More than to the point, it ill behoves the respondents to suggest the applicants should have known that they were at liberty to return when its own representatives did not even make this point until seven years after the application was lodged.
AP2 (Applicant): Even if that were not the case, the Armenian Land Code does not begin to adequately address the violations suffered by the applicants.
AP2 (Applicant): It cannot possibly convey the separate and additional right to return home to enjoy one's personal property and private life.
AP2 (Applicant): The submission that these provisions amount to accessible and effective remedies, like its submission as to the relative ease of travel by persons of Azeri ethnicity to Armenia, are devoid of credibility.
AP2 (Applicant): So too is the complaint that they rely upon abstract arguments about minefields, settlers, and the absence of diplomatic relations.
AP2 (Applicant): That are real borders for IDPs.
AP2 (Applicant): As to the human rights defender capacity, the defender has singly failed to do anything to alleviate the plight of the applicants, and we point to the UN Special Rapporteur's report concerning the office and its dwindling organization.
AP2 (Applicant): That leaves the purported independent nature of the judicial system.
AP2 (Applicant): This very court has expressed serious concerns in several cases as to the independence and effectiveness of Armenian courts.
AP2 (Applicant): One need go no further than to the respondents' silence concerning a question posed by this court as to whether any documented examples of Azerbaijan's citizens of Azeri or Kurdish ethnicity were able to return to the district of Lachin to obtain access to their properties.
AP2 (Applicant): We say the respondents' new claim of exhaustions is about as dissembling as its claim to operate a dual passport system in circumstances where it hasn't even diplomatically recognized the NKR as a state.
AP2 (Applicant): Mr. President, we submit this case tests the Convention's ability to protect the rights
AP2 (Applicant): of the most vulnerable.
AP2 (Applicant): More broadly, the alert suspects a violating state's being given a road map by which to avoid Convention obligations.
AP2 (Applicant): The respondent seeks to hide behind a vacuum it created.
AP2 (Applicant): This should not be allowed to stand.
AP2 (Applicant): My client's journey has been a remarkable one, of hardship but also in the faith of Europe.
AP2 (Applicant): It is a journey that has led them to this grand chamber.
AP2 (Applicant): All they ask is for this court to apply its rule equitably, having regard to their status and the Convention's special character as an instrument of European public order.
AP2 (Applicant): If this happens, we have little doubt that this court will see fit to uphold their claims, thereby vindicating the legal and political purpose that this Convention was designed to serve.
Dean Spielmann (JudgeP): Mr. Muller, I give the floor to Mr. Swaroop. Is that correct?
AP4 (Applicant): I shall address the law and facts in relation to the effective control case.
AP4 (Applicant): The applicants maintain an alternative state agent case as set out in the written submissions.
AP4 (Applicant): For brevity, I shall abbreviate Nagorno-Karabakh to NK.
AP4 (Applicant): The law as to effective control is now well established.
AP4 (Applicant): In Al-Skhaini, this court repeated that a state's Article I obligation to secure the rights and freedoms set out in the convention derived from the fact of a state's effective control over an area, whether it be exercised directly through the contracting state's own armed forces or through a subordinate local administration.
AP4 (Applicant): Where the fact of such domination over the territory is established, I quote, it is not necessary to determine whether the contracting state exercises detailed control over the policies and actions of the subordinate local administration.
AP4 (Applicant): The fact that the local administration survives as a result of the contracting state's military and other support in itself entails that state's responsibility for its policies and actions.
AP4 (Applicant): The rationale for the effective control principle is the effective protection of human rights.
AP4 (Applicant): There should be no human rights vacuum within the territory of one convention state, such as Azerbaijan, which is controlled by another convention state, such as Armenia.
AP4 (Applicant): Furthermore, a state which agrees to the convention and which then chooses to create or sustain a separatist regime elsewhere should strive to secure the convention rights within that territory.
AP4 (Applicant): As to the Respondent's case, in its July 2012 submissions, after five years of this litigation, it has sought to introduce the novel argument that effective control implies detailed direction or control over specific operations of the controlled entity.
AP4 (Applicant): This court has never said or implied that, but it has stated precisely the opposite on numerous occasions, including in the passage that I just quoted from Al-Skaini.
AP4 (Applicant): In Lwazidu, the court held that Turkey was responsible for the acts of a separatist regime in northern Cyprus, because regardless of detailed control, it had overall control over that area of the island.
AP4 (Applicant): See in particular paragraphs 52 to 56 of the judgment.
AP4 (Applicant): And in Ilashku, the court held that Russia was liable for the acts of a separatist regime in Moldova, because regardless of detailed control, it had effective control over the relevant territory based primarily on the presence of some 1,500 troops, the provision of weaponry to the regime, and certain financial support.
AP4 (Applicant): See in particular paragraphs 315 and paragraphs 386 to 393 of the judgment.
AP4 (Applicant): In support of this novel argument, the Respondent also cites certain non-ECHR material, such as the ICJ Nicaragua judgment relating to general principles of attribution of state responsibility.
AP4 (Applicant): That material does not assist.
AP4 (Applicant): The precise issue here is the construction of the word jurisdiction in Article I of the Convention, rather than the general public international law principles of state responsibility, which themselves, as evident from the Respondent's own material, are not settled.
AP4 (Applicant): In any event, this court is entitled to and should continue to construe Article I precisely as it has been doing.
AP4 (Applicant): That is, with special regard to the purpose of the Convention as an instrument for the protection of human rights.
AP4 (Applicant): There is no reason for this court to overturn its clear, settled jurisprudence.
AP4 (Applicant): As to the facts of the case, they are even more compelling than Elashku.
AP4 (Applicant): I refer to the evidence cited in paragraphs 41 to 84 of the applicant's October 2013 submissions and highlight eight matters in particular.
AP4 (Applicant): First, in a March 2010 newspaper interview, the Respondent's president, Sargsyan, stated that in certain circumstances, the Respondent, quote, would consider the return of the security zone regions around NK, which regions, of course, include Lachin.
AP4 (Applicant): The Respondent could only consider the return of those regions if it controlled them in the first place.
AP4 (Applicant): Secondly, various international sources have described NK and the surrounding areas as being occupied by the Respondent.
AP4 (Applicant): For example, a January 2012 European Union information note referred to, quote, the occupation of 20% of Azerbaijani territory by its neighbor.
AP4 (Applicant): Thirdly, there is the analysis of the world-renowned International Institute of Strategic Studies.
AP4 (Applicant): Its 2013 report concluded, quote, since 1994, Armenia has controlled most of NK and seven adjacent territories of Azerbaijan, often called the occupied territories, and that Armenia provides political, military, and economic support to NK.
AP4 (Applicant): Fourthly, the 2008 analysis by Charles Blandy from the Defense Academy of the United Kingdom, which concluded only 8,500 citizens from NK serve in the NK army.