PARTLY DISSENTING OPINION OF JUDGE HAJIYEV

The obvious fact of occupation of Nagorno-Karabakh and the surrounding region, constituting almost one fifth of the territory of Azerbaijan, by the Armenian Republic, has been politically recognised by four R esolutions of the United Nations Security Council, by R esolutions of the UN General Assembly, by the Parliament of the European Union, the Parliamentary Assembly of the Council of Europe and decisions of other international organisations. I note, with satisfaction, that with the present judgment the Court has confirmed this fact, once again, by a judicial decision. The Court has come to that conclusion on the basis of irrefutable evidence indicating that Armenia, through its military presence and provision of military equipment, has been significantly involved in the Nagorno- Karabakh conflict from an early date. The military support has been – and continues to be – decisive for the conquest of and continued control over the Azerbaijani territories. According to the Court, the evidence, not least the 1994 Agreement on Military Cooperation between the Governments of the Republic of Armenia and the “ Republic of Nagorno ‑ Karabakh ” , convincingly shows that the armed forces of Armenia and the “NKR” are highly integrated, that the so-called “NKR” is under the influence of Armenia and enjoys its military, financial and political support, and that Nagorno-Karabakh and all the surrounding occupied regions of Azerbaijan are under the direct control of Armenia. As rightly noted by T. Ferraro, effective control is the main characteristic of occupation as, under international humanitarian law, there cannot be occupation of a territory without effective control exercised therein by hostile foreign forces (see T. Ferraro, “Determining the beginning and end of an occupation under international humanitarian law” , International Review of the Red Cross , no. 885, March 2012, p. 140) . The foregoing is fully consistent, in my opinion, with the requirements of Article 42 of the Regulations concerning the Laws and Customs of War on Land ( The Hague, 18 October 1907 ) , to which the Court refers in paragraph 96 of the present judgment:

“ [O] ccupation within the meaning of the Hague Regulations exists when a S tate exercises actual authority over the territory, or part of the territory, of an enemy S tate (see, for example, E. Benvenisti, The International Law of Occupation (Oxford: Oxford University Press, 2012), p. 43; Y. Arai ‑ Takahashi, The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law (Leiden: Martinus Nijhoff Publishers, 2009), pp. 5 ‑ 8; Y. Dinstein, The International Law of Belligerent Occupation (Cambridge: Cambridge University Press, 2009), at pp. 42-45, § 96-102; and A. Roberts, ‘ Transformative Military Occupation: Applying the Laws of War and Human Rights ’ , American Journal of International Law vol. 100 : 580 (2006), pp. 585-86) . ”

The requirement of actual authority is widely considered to be synonymous with that of effective control. Military occupation is considered to exist in a territory, or part of a territory, if the following element can be demonstrated: the presence of foreign troops which are in a position to exercise effective control without the consent of the sovereign. According to widespread expert opinion, the physical presence of foreign troops is a sine qua non requirement of occupation (most experts consulted by the International Committee of the Red Cross ( ICRC ) in the context of the project on occupation and other forms of administration of foreign territory agreed that “boots on the ground” are needed for the establishment of occupation ( see T. Ferraro, “ Expert Meeting: Occupation and O ther Forms of Administration of Foreign Territory” (Geneva: ICRC, 2012), pp. 10, 17 and 33; E. Benvenisti, cited above, pp. 43 et seq.; and V. Koutroulis, Le d é but et la fin de l ’ application du droit de l ’ occupation (Paris: É ditions Pedone, 2010), pp. 35-41).

In paragraph 17 4 of the present judgment, the Court rightly notes that

“ ... it is hardly conceivable that Nagorno-Karabakh – an entity with a population of fewer than 150,000 ethnic Armenians – was able, without the substantial military support of Armenia, to set up a defence force in early 1992 that, against the country of Azerbaijan with a population of approximately seven million people [at present more than nine million], not only established control of the former NKAO but also, before the end of 1993, conquered the whole or major parts of seven surrounding Azerbaijani districts”.

I would add that the occupation was accompanied by the forcible expulsion of almost 800,000 people, which in itself required substantial military force, military equipment and forcible retention. Accordingly, the continuing occupation requires no fewer human and material resources. Despite the frustration expressed by Armenian parents about their sons ’ military service in the occupied territories, which can be seen in the press (www.epress.am, news bulletin of 11 June 2014), the situation of occupation continues. As recently as November 2014, Armenia conducted military manoeuvres in the occupied territories under the symbolic name of “Unity” with the participation of 47,000 military personnel and a large quantity of military equipment (www.regnum.ru, news bulletin of 12 November 2014). The existing situation was contrary to the very essence of the Convention at the time of its ratification by Armenia and continues to be contrary to it today. The Convention declares in its Preamble that the States which sign the Convention and which are members of the Council of Europe must demonstrate a profound belief in those fundamental freedoms which are the foundation of justice and peace in the world. This paradox has always reminded me of the words of Oscar Wilde: “I can believe in anything, provided that it is quite incredible”.

The Council of Europe has reacted to the current situation in Resolution 1416 (2015) of the Parliamentary Assembly of the Council of Europe adopted on 25 January 2005, in which it was noted that

“ [t] he Assembly expresses its concern that the military action and the widespread ethnic hostilities which preceded it, led to large-scale ethnic expulsion and the creation of mono-ethnic areas which resemble the terrible concept of ethnic cleansing. The Assembly reaffirms that independence and secession of a regional territory from a state may only be achieved through a lawful and peaceful process based on the democratic support of the inhabitants of such territory and not in the wake of an armed conflict leading to ethnic expulsion and the de facto annexation of such territory of another s tate . The Assembly reiterates that the occupation of foreign territory by a member State constitutes a grave violation of that State ’ s obligations as member of the Council of Europe and reaffirms the right of displaced persons from the area of conflict to return to their h omes safely and with dignity.”

As can be seen from the above-mentioned Resolution, the Assembly, by reflecting the existing picture, points to the ethnic nature of the expulsion of people from their homeland.

Taking into account the circumstances and the arguments of the applicants, which, in my view, had to be adequately answered, I disagreed with the majority ’ s conclusion that no separate issue arises under Article 14 of the Convention.

Thus, the applicants ’ loss of all control over, as well as any possibility to use, sell, bequeath, mortgage, develop or enjoy, their property; the Government ’ s continued refusal to allow them to return to their homes in Lachin; and their failure to provide an effective or indeed any remedy to persons displaced from occupied territories are the result of discrimination and accordingly, in my opinion, are violation s of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 and Article s 8 and 13 of the Convention. The Court has repeatedly indicated that Article 14 of the Convention does not prohibit all difference s in treatment. According to the Court, it is necessary to develop criteria on the basis of which it can be determined whether a given difference in treatment in securing the human rights and freedoms guaranteed in the Convention is contrary to Article 14. Following the principles which can be inferred from the legal practices of the numerous democratic countries, the Court will find that the principle of equal treatment is violated where a difference of treatment has no objective and reasonable justification. A difference in treatment in securing the rights and freedoms guaranteed by the Convention must not only pursue a legitimate aim; Article 14 will also be violated if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, for example, Rasmussen v. Denmark , 28 November 1984, § 38, Series A no. 87 , and Lithgow and Others v. the United Kingdom , 8 July 1986, § 177, Series A no. 102 ).

The a bove-mentioned legal approach of the Court, when applied to the circumstances of the present case, demonstrates an obvious inequality of treatment with regard to the applicants. This difference of treatment does not pursue a legitimate aim and has no objective and reasonable justification. The applicants stress, not without reason, that they have been subjected to discrimination because the actions taken by the Armenian military forces have disproportionately affected them. I also agree that when considering the applicants ’ Article 14 claim, the standard of proof which the Court adopts should not be equated with the criminal standard of proof applicable in common-law domestic courts. Other human rights tribunals do not require this high standard. Judge Mularoni, in her partly dissenting opinion in Hasan İ lhan v. Turkey , no. 22494/93, 9 November 2004 , noted:

“I consider that as long as the Court persists in requiring in the context of Article 14 complaints of discrimination on grounds of racial or national origin a ‘ beyond reasonable doubt ’ standard of proof, this will result in the removal in practice of human rights protection guaranteed by Article 14 in areas where the highest level of protection, rather than the highest level of proof, should be the priority. There could be no more effective a tool for ensuring that the protection against discrimination on grounds of racial or national origin will become illusory and inoperative than to expect victims to submit themselves to such a high standard of proof. In reality, the application of such a high standard is tantamount to rendering it impossible for applicants to prove that t here was a violation of Article 14. I would add that this high standard is not required by other leading human rights tribunals . ”

The given principle was recognised by the Court in Nachova and Others v. Bulgaria ([GC], nos. 43577/98 and 43579/98, ECHR 2005 ‑ VII ) . Where, as in this case, on the face of it there is clear evidence of differential treatment of two different ethnic groups , it should be for the State to show that such treatment is not discriminatory . This is because they have exclusive access to the reasons behind their actions and accordingly are aware of whether the apparently differential treatment has some other innocent explanation.

The evidence suggests not only that the expulsions were discriminatory but that the respondent State has since allowed the return of non-Azer baijanis who were displaced. This is not only clear evidence of a discriminatory policy but illustrates the ongoing nature of the violations. Moreover, in support of a finding that the treatment of the applicants was discriminatory , we can add the fact that after the ethnic cleansing of non-Armenian inhabitants of the Lachin region, a policy of populating the region with Armenians from Armenia was pursued. Thus, according to the “ Report of the OSCE Fact-Finding Mission (FFM) to the Occupied Territories of Azerbaijan Surrounding Nagorno-Karabakh ” , the FFM conducted interviews in the Lachin d istrict with certain Lachin residents who had Armenian passports and claimed to ta ke part in Armenian elections.

Accordingly, the applicants, who were expelled from Lachin more than twenty years ago and have no access to their homes in Lachin, are not in a position to assert their rights guaranteed under the Convention as they were discriminated against, contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol No.1 and Article s 8 and 13 of the Convention.