PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE ZIEMELE

1. In my view, the message of this judgment is not very clear. This difficulty is partly due to the methodology that the majority chose to follow in a case which, in essence, is about an international conflict with too many open and hidden dimensions for the Court to examine within the scope of its traditional competence. If the message to be conveyed is that Armenia should do its utmost to engage effectively with Azerbaijan in finding a solution to the conflict through the Minsk or any other process, I can follow the finding of a violation under Article 8 of the Convention and Article 1 of Protocol No. 1. Indeed , I voted with the majority with this understanding in mind. There is no question that persons such as the applicants who cannot access or claim compensation for their property should be able to do so. To my mind, however, Armenia ’ s responsibility lies in its positive obligations under these Articles. The Court does not have competence ratione temporis to assess how the property was lost or interfered with at the time. Today the Court can only examine whether by the time the applicants lodged a complaint with the Court , Armenia had done what is within its responsibility concerning the normalisation of the situation of those individuals. I see this obligation a s one of a positive character.

2. The most complex issues in the case are yet again those of jurisdiction and attribution of responsibility. In Jaloud v. the Netherlands ([GC] , no. 47708/08, ECHR 2014), with reference to Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04 and 2 others , ECHR 2012), the Court attempted to further clarify the point that these concepts are not identical. They may overlap, but they may also be distinct. In paragraph 154 of that judgment the Court reiterated that “the test for establishing the existence of ‘ jurisdiction ’ under Article 1 of the Convention has never been equated with the test for establishing a State ’ s responsibility for an internationally wrongful act under general international law (see Catan and Others , cited above, § 115)”. In other words, the Court cannot assume that jurisdiction automatically leads to the responsibility of the State concerned for the alleged violations of the ir Convention obligations. At the same time, the absence of territorial jurisdiction does not mean that the State will never bear responsibility for those acts that it has generated, at least under general international law. The Court ’ s case-law has been criticised for creating uncertainty or even confusion between those two concepts. The Court ’ s argument has been that within the scope of Article 1 of the Convention it cannot proceed otherwise, since, according to the ordinary meaning of Article 1, the precondition for its assessment of responsibility is the establishment of jurisdiction of the respondent State. Within this logic jurisdiction is a threshold criterion, as the Court has always emphasi s ed.

3. The need to establish Armenia ’ s jurisdiction over the district of Lachin so as to be able to assess whether Armenia has any obligations stemming from the Convention in relation to the applicants ’ properties is exactly the issue which makes this an impossible case. As stated above, while I think Armenia has important obligations, I have great difficulty in following the Court ’ s reasoning in paragraphs 169 to 1 87 of the present judgment and therefore voted against establishing the jurisdiction of Armenia in the manner proposed in these paragraphs. Similarly, I cannot follow the inclusion in the section on Regulations concerning the Laws and Customs of War on Land ( The Hague, 18 October ) and Convention ( IV ) relative to the Protection of Civilian Persons in Time of War (Geneva, 12 August 1949 ) . There is no further reference to these international texts in the Court ’ s assessment. The proposed legal weight of the reference to the documents regulating belligerent occupation is not at all clear .

4. Previously, the Court has examined cases such as Loizidou v. Turkey ( (merits), 18 December 1996, Reports of Judgments and Decisions 1996 ‑ VI ) , and IlaÅŸcu and Others v. Moldova and Russia ( [GC], no. 48787/99, ECHR 2004 ‑ VII ) in which there was an evident and considerable presence of Turkish and Russian armed forces respectively in the disputed or occupied territories. The situation in northern Cyprus has been clearly defined as being contrary to the Charter of the United Nations . The situation after the demise of the U nion of Soviet Socialist Republics (U SSR ) , with its 14th A rmy remaining in the territory of Transdniestria , does not raise too many doubts as to the control of that territory. As far as our case is concerned, however, we have information which is somewhat disputed. The Court did not accept the proposal of a fact-finding mission, which, as in IlaÅŸcu and Others (cited above) , might have provided it with much-needed evidence. In my view, the Court should have given proper weight to the UN Security Council assessment. The UN Security Council Resolutions have stated that “local Armenian forces” are well organised and have created their own governance of the territories that they occupy. It is also apparent from the UN Security Council Resolutions cited in the present judgment that Armenia can exercise influence over the Armenians of Nagorno-Karabakh. The question remains whether this is sufficient to establish Armenia ’ s jurisdiction in the disputed territories and to conclude that there is high integration in virtually all important matters between Armenia and the “NKR”.

5. Unlike the particularly scrupulous establishment of the facts normally carried out by the International Court of Justice (ICJ) in cases concerning disputes over territories, jurisdiction and attribution of responsibility, the Court appears to be watering down certain evidentiary standards in highly controversial situations. Furthermore, even if Armenia does have jurisdiction over Nagorno-Karabkh it is necessary, in order to find violations of the Convention, to attribute those alleged violations to Armenia, so one needs to have evidence that Armenia prevents the applicants from accessing their property in Lachin. The Court may not need to do so if it adopts a different interpretation of jurisdiction and responsibility for the purposes of the Convention, even though it has always reiterated that it refers to the definition of jurisdiction traditionally employed in international law. As far as international law is concerned, the establishment of the fact of jurisdiction does not mean that Armenia ( a) had specific obligations under the Convention and ( b) committed an internationally wrongful act. In both respects a careful examination is needed.

6. The following passage from the Court ’ s case-law does indeed indicate that it has developed its own interpretation of “jurisdiction and responsibility” for the purposes of compliance with Convention obligations. The Court has stated:

“Where the fact of such domination over the territory [effective control] is established, it is not necessary to determine whether the Contracting State exercises detailed control over the policies and actions of the subordinate local administration. The fact that the local administration survives as a result of the Contracting State ’ s military and other support entails that State ’ s responsibility for its policies and actions” (see paragraph 168 of the present judgment, citing Catan and Others , § 106).

This approach contrasts with the methodology employed by the ICJ , which uses the standard of “complete dependence”. Moreover, that is the standard for State responsibility irrespectiv e of the issue of jurisdiction.

7. The ICJ reiterated its approach to the issue of the attribution of responsibility as concerns subordinate local administrations or similar groups in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment , ICJ Reports 2007 . It stated as follows .

“ 391. T he first issue raised ... is whether it is possible in principle to attribute to a State conduct of persons – or groups of persons – who, while they do not have the legal status of State organs, in fact act under such strict control by the State that they must be treated as its organs for purposes of the necessary attribution leading to the State ’ s responsibility for an internationally wrongful act. The Court has in fact already addressed this question, and given an answer to it in principle, in its Judgment of 27 June 1986 in the Case concerning Military and Paramilitary Activities in and against Nicaragua ( Nicaragua v. United States of America ) ( Merits , Judgment , I.C.J. Reports 1986, pp. 62-64). In paragraph 109 of that Judgment the Court stated that it had to

‘ determine ... whether or not the relationship of the contras to the United States Government was so much one of dependence on the one side and control on the other that it would be right to equate the contras , for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government ’ (p. 62).

Then, examining the facts in the light of the information in its possession, the Court observed that ‘ there is no clear evidence of the United States having actually exercised such a degree of control in all fields as to justify treating the contras as acting on its behalf ’ (para . 109), and went on to conclude that ‘ the evidence available to the Court ... is insufficient to demonstrate [ the contras ’ ] complete dependence on United States aid ’ , so that the Court was ‘ unable to determine that the contra force may be equated for legal purposes with the forces of the United States ’ (pp. 62-63, para . 110) . ”

The ICJ summed up as follows.

“ 392. T he passages quoted show that, according to the Court ’ s jurisprudence, persons, groups of persons or entities may, for purposes of international responsibility, be equated with State organs even if that status does not follow from internal law, provided that in fact the persons, groups or entities act in ‘ complete dependence ’ on the State, of which they are ultimately merely the instrument. In such a case, it is appropriate to look beyond legal status alone, in order to grasp the reality of the relationship between the person taking action, and the State to which he is so closely attached as to appear to be nothing more than its agent: any other solution would allow States to escape their international responsibility by choosing to act through persons or entities whose supposed independence would be purely fictitious.

393. However, so to equate persons or entities with State organs when they do not have that status under internal law must be exceptional, for it requires proof of a particularly great degree of State control over them , a relationship which the Court ’ s Judgment quoted above expressly described as ‘ complete dependence ’ ” (emphasis added) .

8. The ICJ ’ s required standard of proof is high and it has, through several cases, developed a detailed methodology regarding different elements of evidence submitted by the parties. For example, in our case the applicants submitted to the Court statements allegedly made by high ‑ ranking Armenian politicians. The Court has chosen to refer to Nicaragua v. the United States of America (cited above) in order to explain its decision to admit in evidence these statements, which, according to the Court ’ s interpretation, show the high level of integration between the arm ed forces of Armenia and the NKR entity (see paragraphs 178-79 of the present judgment ). The Court refers to paragraph 64 in Nicaragua v. the United States of America , which indeed explains that “the Court takes the view that statements of this kind, emanating from high-ranking official political figures, sometimes indeed of the highest rank, are of particular probative value”. At the same time, in paragraph 65 of that same judgment – to which the Court does not make reference – the ICJ explains the limits of such a method. It states:

“However , it is natural also that the Court should treat such statements with caution, whether the official statement was made by an authority of the Respondent or of the Applicant. Neither Article 53 of the Statute, nor any other ground, could justify a selective approach, which would have undermined the consistency of the Court ’ s methods and its elementary duty to ensure equality between the Parties. The Court must take account of the manner in which the statements were made public; evidently, it cannot treat them as having the same value irrespective of whether the text is to be found in an official national or international publication, or in a book or newspaper. It must also take note whether the text of the officia1 statement in question appeared in the language used by the author or on the basis of a translation ( cf. I.C.J. Reports 1980, p. 10, para . 13). It may also be relevant whether or not such a statement was brought to the Court ’ s knowledge by officia l communications filed in conformity with the relevant requirements of the Statute and Rules of Court. Furthermore, the Court has inevitably sometimes had to interpret the statements, to ascertain precisely to what degree they constituted acknowledgments of a fact.”

According to the facts of the present case, the applicants referred to statements by Armenian leaders and an interview which was published in the newspaper (see paragraphs 62 and 68 of the present judgment ). In accordance with the principles stated by the ICJ in Nicaragua v. the United States of America , in such circumstances the principle of equality between the parties is of paramount importance as is a proper assessment of the source of such statements. The procedure followed by the Court concerning these pieces of information remains unclear and does not appear to have complied with the principles of fairness and caution.

9. As for the Agreement on Military Cooperation between the Governments of the Republic of Armenia and the “ Republic of Nagorno ‑ Karabakh ” (see paragraph s 74 and 175 of the present judgment ), there are many such agreements between two or more States. One would hope that they do not automatically result in the loss of jurisdiction or the acquisition of control over new territories for the purposes of international responsibility and do not in themselves represent a threat to the neighbouring countries. The letter, legal character and practical consequences of the agreement have to be examined carefully. It may well be that in terms of international law such an agreement between a State and a non-recognised entity does not have any legal value. It may also be that the international community, wishing to end the conflict in the region, does not appreciate such a document and condemns it. However, the manner in which the Court invokes the above-mentioned Agreement coupled with the assertion that Armenia “has been significantly involved in the Nagorno-Karabakh conflict from an early date” (see paragraph 180 of the present judgment ) makes one wonder what the scope of the case is. Is it really a case about the lack of access to property following the ratification of the Convention by Armenia or is it a case about the war in 1992 in Azerbaijan and its consequences (see paragraphs 18-20 )?

10. There is no question but that the Court has many choices. It may or may not choose to pronounce on broader questions of international law, such as the war and its consequences. With this case it has chosen to make certain pronouncements. It has done so in earlier cases too, but such a choice is still unusual for the Court. I do not have a problem with an international court, such as the European Court of Human Rights, taking cogni s ance of the broader picture. On the contrary. However, in that case the Court has to be consistent and do so in all relevant cases. There have been cases in which the Court has, on the contrary, openly refused to take into consideration arguments deriving from international law. This point does not, however, answer the more difficult question as to whether the Court should apply a different standard of attribution of responsibility than the one in international law and whether more or less the same standard should determine jurisdiction. I have serious reservations in that regard.

11. The Court has now established that Armenia controls the “NKR” in the same way that Turkey controls northern Cyprus or Russia controls Trans d ni e stria. From now on it seems that the presumption will be that alleged violations of human rights within the “NKR” should be brought against Armenia. There is no doubt that one should not support a Convention vacuum in Europe. I do not think that Nagorno-Karabakh is such a vacuum. Clearly, cases coming fr om there should be adjudicated.

12. However, in my view , it is essential that in this category of cases, as in other cases, a proper attribution of responsibility test be carried out after the Court has identified the nature of the Convention obligation at stake. The Court has already done this, for example in cases that have arisen following the dissolution of the Socialist Federal Republic of Yugoslavia and in particular in the so-called “bank savings” cases. T he Court examined the question of attribution of responsibility with regard to the specific context of State succession (see Kovačić and Others v. Slovenia [GC], nos. 44574/98 and 2 others , 3 October 2008 , and JudgeRess ’ s c oncurring o pinion therein ). In the case at hand, the conclusion is that “the denial of access to the applicants ’ homes constitutes an unjustified interference with their right to respect for their private and family lives as well as their homes” (see paragraph 207 of the present judgment ). It is not previously explained by what means Armenia has denied them access to their homes, unless one considers that by the very fact that Armenia has, in the Court ’ s view, jurisdiction over Nagorno-Karabakh it denies access to homes. It is with this in mind that I voted against finding a violation of Article 13 since in my view the Court did not have sufficient information regarding whether property claims were indeed not examined by local courts. As I have explained above, this approach fails to address the real issue in the case. To my mind, the question is whether , given that Armenia can influence the local Armenian government in Nagorno ‑ Karabakh and that it is one of the parties to negotiations, it bears responsibility for not having taken positive steps for many years which would have permitted the return of displaced persons or compensation. I cannot qualify that as a denial of property rights. It is an issue of positive obligations having regard to the more general context of international law. For all these reasons I did not find that Armenia has jurisdiction over Nagorno-Karabakh in the manner indicated in the judgment but I did find that Armenia has failed to comply with its pos itive obligations under Article 1 of Protocol No. 1 and Article 8 of the Convention.