CONCURRING OPINION OF JUDGE ZIEMELE

1. I agree with the outcome of the case and with the methodology adopted in respect of positive obligations. As indicated in my separate opinion in Chiragov and Others v . Armenia ( [GC], no. 13216/05 , ECHR 2015 ) , I would have preferred also to examin e Armenia ’ s positive obligations under the Convention.

2. The case at hand raises a different issue , which is clearly related to the concept of attribution of responsibility . The main question in dispute concerns the scope of Azerbaijan ’ s responsibility under the Convention in Gulistan , which is a village on the border with Nagorno-Karabakh where , allegedly , Azerbaijan cannot ensure respect for human rights because this area has become a no-man’s-land in view of the exchanges of fire on both sides of the border. The Government argue d that they could only have limited responsibility over that area since it was effectively a war zone , and refer red to the notion of “ limited responsibility ” developed by the Court in IlaÅŸcu and Others v. Moldova and Russia ( [GC], no. 48787/99, ECHR 2004 ‑ VII ).

3. This is another type of situation in which the existing confusion in the Court ’ s case -law between the jurisdiction and responsibility tests gives rise to the relevant arguments of the Government and puts the Court in some difficulty since the facts of the case are such that they require it to disentangle to some extent the dicta of the Ilaşcu and Others case in this regard. There is no doubt that Gulistan is within the jurisdiction of Azerbaijan, just as Transdniestria is within the jurisdiction of the Republic of Moldova. It is another question whether Azerbaijan is in control of the situation or actions on the ground. This, however, is a question of attribution of responsibility and not one of jurisdiction (for the correct distinction, see Ilaşcu and Others , § 333). The question of attribution is linked to the nature of the obligations.

4. I think it was correct to say in IlaÅŸcu and Others that the Republic of Moldova ha d positive obligations. It is equally correct to say that Azerbaijan has positive obligations here . In my view , this approach is more suitable in such situations of conflict.

5. The Court has stated in the past that the only time when acts or omissions may not be attributed to the State, even where the territory concerned is within its jurisdiction, are those cases in which the territory is under military occupation or under the control of insurgent s . However, even then as far as attribution of responsibility is concerned, the Court needs to look at the facts and determine which actions complained of were under which State ’ s control.

6. Furthermore, I am not at all convinced by the Court ’ s statement of principle that because there is no other State that can be held responsible Azerbaijan must be responsible. This is not a test or a principle compatible with the rules of responsibility (see paragraphs 142 and 148 of the present judgment ). I do not share such sweeping statements . Whilst this can certainly be an ultimate goal to be achieved in Europe , it is not a legal criterion on the basis of which one attributes responsibility. In the case at hand, there is no area without protection , because it is a village with in the jurisdiction of Azerbaijan and that means that in principle this State is responsible. The real question is which obligations we are talking about and whether some inaction can be attributed to Azerbaijan.

7. In the case at hand , we have applicants who have lost their homes and cannot return there because of a long -standing conflict between two neighbouring nations. I have no doubt whatsoever that Azerbaijan is also responsible for the fact that no improvement in the conflict is in sight. There is no question but that it could do more to allow Armenians to return to their homes or to grant compensation. These steps could even be taken unilaterally and possibly be a way of moving towards finding a solution to the conflict from a different angle. The same is true for Armenia. The two States do not need to agree on that together. By virtue of their Convention obligations, they could propose unilateral solutions for these people.

8. It is on the basis of this understanding that I share the finding of the Court that there has been a violation of positive obligations as regards Article 1 of Protocol No. 1 and Article 8 of the Convention . Finding a violation of Article 13 may indeed be understood to mean that Azerbaijan can propose its own action plan. I entirely dis agree , however , that there is room for any talk about “ limited liability ” . There may be very little that the S tate with jurisdiction can control or ensure and in that sense one can talk about limited possibilities for attributing actions or omissions to th at State , but once some form of in action has been attributed ( for example, absence of a compensation scheme) , there will be a responsibility if those obligations are not complied with.

CONCURRING OPINION OF JUDGE YUDKIVSKA

With some hesitation, I have voted in favour of finding a violation of Article 1 of Protocol No. 1 and Article 8 of the Convention, albeit on a much more limited basis.

Two cases related to the Nagorno-Karabakh conflict – Chiragov and Others v. Armenia [5] and the present case – were examined concurrently by the Grand Chamber and a similar methodology pursued in both cases. The Court had the challenging task of guaranteeing a comprehensible interpretation of Article 1 of the Convention in post-conflict situations. I am convinced, however, that these cases are significantly different in a number of respects, and that their simultaneous examination was rather factitious, to the detriment of a coherent perspective of “jurisdiction”, thus leading to a result that cannot be seen as a fair one, namely that Azerbaijan bears full responsibility for the violations found.

Firstly, it is established that Gulistan – a village on the north bank of the R iver Indzachay, where the applicant had his property – is situated on a “ L ine of C ontact” (frontline) between Azerbaijani military forces and those belonging to the separatist “Republic of Nagorno-Karbakh” (the “NKR” ) , the latter ’ s actions being attributed to Armenia from the viewpoint of the Convention. The village and its surroundings are mined, and violations of the ceasefire occur regularly, presumably by both sides. Whilst negotiations between Armenia and Azerbaijan have not yet yielded any meaningful results, and the international community remains unhelpful in solving the long-standing conflict between the two member States, I fail to understand how in this specific case we can attribute the whole responsibility to Azerbaijan.

Secondly, in applying its jurisprudence on issues of jurisdiction and effective control, the Grand Chamber disregarded the fact that no one can stay in a ceasefire zone separating two belligerent forces (it is recogni s ed that there were no civilians in the village), and the scope of the Convention guarantees is therefore significantly different. For the first time in its history the Court has had to address the issue of securing Convention rights and freedoms in a completely uninhabited territory.

I shall further elaborate on my points of disagreement below.

(1) Concurrent responsibility of two member States

In the instant case , the paradox lies in the fact that it follows from the Court ’ s conclusion in Chiragov and Others that Armenia “exercises effective control over Nagorno-Karabakh and the surrounding territories” (see Chirgaov and Others , cited above, § 186) , including, obviously, the territory adjacent to the frontline. Thus, it should also be held accountable for the harmful outcome in Sargsyan and, consequently, bear some responsibility as well.

The issue of shared responsibility is not new to this Court, although no sufficiently clear guidance has yet been provided . [6] In previous cases many applicants believed that their Convention rights were violated by numerous States and submitted their applications accordingly. The Court thus put relevant questions to several parties concerned and had an opportunity to determine the scope of responsibility of each Contracting Party. This has been done in different contexts, such as expulsion and extradition (see, among others, M.S.S. v. Belgium and Greece [7] , and Shamayev and Others v. Georgia and Russia [8] ) , child custody (see, as the latest example, Furman v. Slovenia and Austria [9] ) , protection from trafficking (see Rantsev v. Cyprus and Russia [10] ) , and so on.

Concurrent responsibility clearly arises in the context of post-conflict situations, the Court ’ s landmark judgment in this respect being Ilaşcu and O th ers v. Moldova and Russia [11] . In Ilaşcu and Others , which has provided guidance in Chiragov and Others (cited above) and the present case, the territory of Transdniestria was de facto controlled by the Russian-backed separatist regime, whilst remaining de jure a territory of the Republic of Moldova. This factual situation affected the distribution of responsibility between Russia and the Republic of Moldova.

Further cases arising from the Trans d ni e strian conflict ( for example, Ivanţoc and Others v. Moldova and Russia [12] and Catan and Others v. the Republic of Moldova and Russia [13] were examined in the same way, that is, from the perspective of shared responsibility of both Contracting Parties (although in those cases the Court found that the Republic of Moldova had discharged its positive obligations ). The Court was subsequently called upon to determine the level of responsibility of both Georgia and Russia regarding the allegedly unlawful detention of the applicant in South Ossetia, governed by the separatist regime presumably subordinate to the Russian authorities, in Parastayev v. Russia and Georgia [14] . The case was communicated to both respondent Governments, but was later withdrawn at the applicant ’ s request.

Thus, when an applicant brings his or her claim against all allegedly responsible States, the Court has an opportunity to examine the extent to which each of the respondent States is accountable. In Ilaşcu and Others the Court made it clear that the existence of a separatist regime reduced the scope of Moldovan jurisdiction (limiting this jurisdiction to positive obligations only); however, this was done in view of the further finding that Russia exercised jurisdiction over that part of the Republic of Moldova. In the present case, being deprived of the possibility of examining Armenia ’ s responsibility for the violations complained of, the Court attributed full responsibility to Azerbaijan “taking into account the need to avoid a vacuum in Convention protection” (see paragraph 148 of the present jud g ment ).

I find that in the circumstances of the present case, in the absence of any claim against Armenia, this legal formula was artificial and led to erroneous and unfair conclusions: Azerbaijan, which has been trying to regain control over the whole territory of its recognised borders for more than twenty years, was held fully accountable for its inability to establish normal life in Gulistan, which is under fire from “NKR” forces subordinate to Armenia. Full responsibility was attributed without full attribution of conduct.

The mere fact that the applicant, for obvious reasons, decided to lodge a complaint against only one High Contracting Party involved in the conflict and not both (as in IlaÅŸcu and Others or Parastayev , cited above ) should not automatically engage the full responsibility of Azerbaijan, which is a victim State suffering occupation of a significant part of its territory (as is clear from the Chiragov and Others judgment , cited above ).

Alternatively, although the Court is obviously unable to examine proprio motu the issue of responsibility of a State which was not party to the case at hand, the mere existence of a long-standing inter-State conflict should trigger shared responsibility. Evidently, there is no mechanism under the Convention by which to identify a High Contracting Party accountable – partially or fully – for human rights violations complained of if an applicant brings a complaint against a party not responsible or responsible only in part. Nevertheless, it would be deceptive to ignore the factually clearly limited accountability of the respondent State; and procedural impediments should not turn into substantive wrongs.

Some inspiration can be drawn from the practice of other international bodies. I can mention the classic judgment of the International Court of Justice (ICJ) in Certain Phosphate Lands in Nauru [15] , in which the ICJ had to consider an objection by Australia based on the fact that New Zealand and the United Kingdom, which were equally involved, were not parties to the proceedings. The respondent State believed that a claim could only be brought against the three States jointly, and not against one of them individually. The ICJ found that no reason “had been shown why a claim brought against only one of the three States should be declared inadmissible in limine litis merely because that claim raise[d] questions of the administration of the territory, which was shared with two other States”. It found that Australia had obligations in its capacity as one of the three States involved, and thus proceeded to examine its (partial) responsibility.

It further disagreed with the respondent State that any conclusion as to the alleged violation by Australia of its obligations would necessarily involve a finding as to the discharge by the other two States of their obligations in that respect (which in fact happened in the present judment ):

“ 53. National courts, for their part, have more often than not the necessary power to order proprio motu the joinder of third parties who may be affected by the decision to be rendered; that solution makes it possible to settle a dispute in the presence of all the parties concerned. But on the international plane the Court has no such power. Its jurisdiction depends on the consent of States and, consequently, the Court may not compel a State to appear before i t, even by way of intervention.

54. A State, however, which is not a party to a case is free to apply for permission to intervene ...

But the absence of such a request in no way precludes the Court from adjudicating upon the claims submitted to it, provided that the legal interests of the third State which may possibly be affected do not form the very subject-matter of the decision that is applied for. ...”

Similarly, whilst in the present case there was no procedural possibility of establishing any responsibility on the part of Armenia, the factual context of the case should have prevented the Grand Chamber from placing the whole blame on Azerbaijan. Instead, exactly as in IlaÅŸcu and Others (cited above) , we are dealing here with the reduced scope of jurisdiction of Azerbaijan over Gulistan, and the undertaking given under Article 1 must be considered only in the light of its positive obligations.

I wholeheartedly concur with Judge Bonello, who mentioned in his separate opinion in Al-Skeini and Others v. the United Kingdom [16] that “[j]urisdiction arises from ... having the capability to fulfil [obligations under the Convention] (or not to fulfil them)” .

Without the relevant steps on Armenia ’ s part, which are clearly outside any control of Azerbaijan, the latter does not have the capability to fulfil its obligations in Gulistan. The applicant ’ s inability to gain access to his property in this village was triggered by Armenian-backed “NKR” ’ s belligerence, and any responsibilities of both States in this respect are concurrent and mutually dependent.

In Shakespeare ’ s words, “what ’ s past is prologue”. The applicant ’ s current situation is a result of the lengthy struggle between two member States with no solution for past problems yet being found and new problems evolving. As Judge Elaraby wrote, concurring with the ICJ Advisory O pinion in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory :

“ ... Occupation, regardless of its duration, gives rise to a myriad of human, legal and political problems. In dealing with prolonged belligerent occupation, international law seeks to ‘ perform a holding operation pending the termination of the conflict ’ ...

[The] ‘ right of every State in the area ... to live in peace within secure and recognized boundaries free from threats or acts of force ’ ... are solemn reciprocal rights which give rise to solemn legal obligations . .. . Security cannot be attained by one party at the expense of the other. By the same token of corresponding rights and obligations, the two sides have a reciprocal obligation to scrupulously respect and comply with the rules . .. . ” [17]

It is not within Azerbaijan ’ s power to unilaterally terminate the breach of the applicant ’ s rights, and both States have a reciprocal obligation to find a solution. Ultimately, to impose full responsibility on a State, part of whose territory has been unlawfully occupied for decades, is, in my view, plainly wrong from both a legal and a moral standpoint.

(2) “Effective control”

The majority found that the Government of Azerbaijan had full jurisdiction over Gulistan although they “may encounter difficulties at a practical level in exercising their authority” (see paragraph 150 of the present judgment ).

Apart from the above-mentioned matter of concurrent responsibility, a question arises regarding how we should understand the term “jurisdiction” in the context of empty land, or merely uninhabited territory. I cannot but quote Judge Loucaides, who gave the following definition in his separate opinion in Assanidze v. Georgia [18] :

“To my mind ‘ jurisdiction ’ means actual authority, that is to say the possibility of imposing the will of the State on any person , whether exercised within the territory of the High Contracting Party or outside that territory” (emphasis added).

Hence, the issue of the possibility, even a theoretical one, of imposing the State ’ s will on a person is central to determining jurisdiction. In this respect, from a judicial review perspective, the present case is unique. As I said earlier, for the first time this Court is dealing with the question of effective control over a territory in which there is no one on whom the State ’ s will can be imposed. As echoe d by Judge Bonello in the above ‑ mentioned separate opinion in Al-Skeini and Others , “[j] urisdiction means no less and no more than ‘ authority over ’ and ‘ control of ’ . In relation to Convention obligations, jurisdiction ... ought to be functional ... ”.

Whilst in Chiragov and Others (cited above) the Court examined a fairly standard situation of illegal occupation of a populated district (Lachin) by the separatist regime backed by Armenia ( which is precisely why in that judgment the Court referred to the relevant Regulations annexed to Convention (IV) respecting the Laws and Customs of War on Land ( The Hague, 18 October 1907 – “the 1907 Hague Regulations”) and Convention (IV) relative to the Protection of Civilian Persons in Time of War ( Geneva, 12 August 1949 ) ) , here we cannot discuss any State ’ s “effective control of the relevant territory and its inhabitants” since there have been no inhabitants at all in Gulistan since 1994, so there is no possibility of a “functional” jurisdiction.

Can anyone exercise authority, in any sense of the word, over heavily mined territory which lies either side of a frontline, surrounded by armed forces from both sides and which, consequently, no one can even enter?

Human rights instruments are by definition person-orientated: there should be a person to enjoy the rights guaranteed by the Convention, and the High Contracting Parties shall secure these rights and freedoms to everyone within their jurisdiction.

The previous jurisprudence referred to in the present judgment – Ilaşcu and Others and Assanidze , among others – is not, in my view, automatically applicable to the present situation: an empty land cannot have and does not require the same level of effective control as an inhabited area. The judgment accepted, in principle, that the present case was different (see paragraph 142 of the present judgment , first sentence), but nevertheless suggested that it was up to the Government to show that another State has “effective control”. I regret that the Grand Chamber lacked the courage to admit that we were dealing with a sui generis situation in which the absence of “effective control” of any occupying power over Gulistan does not inevitably mean that Azerbaijan exercises effective control over the disputed area. No similar precedents, to the best of my knowledge, can be found in our case-law.

None would contest that Azerbaijan has jurisdiction over its internationally recognised territory, including Gulistan; the disagreement here is about the scope of this jurisdiction. In paragraph 144 the present judgment refers to Article 42 of the 1907 Hague Regulations, according to which territory is considered occupied when it is actually placed under the authority of a hostile army, and such authority has been established and can be exercised . Basing itself on the material in its possession, the Court concluded that Gulistan was not occupied by or under the effective control of foreign forces. I can agree with this, but a similar test – whether or not authority can be exercised – should apply when we are assessing whether or not Azerbaijan had full and operational jurisdiction over this territory.

The term “effective control” was developed in international law to describe the circumstances and conditions for determining the existence of an occupation. It assesses the exercise of authority in a territory. Thus it is a test for attribution of conduct.

A number of international tribunals ’ judgments have noted (in the context of occupation) this link between “effective control” and the possibility of exercising actual authority over a particular area. It is also stressed in the legal literature that the “degree of effective control required may depend on the terrain, the density of the population and a slew of other considerations” [19] . Clearly, we cannot talk about the same degree of “effective control” in inhabited areas as in uninhabited ones, and no actual authority over Gulistan is or can be exercised by Azerbaijan in the absence of any population.

As suggested by Lord Brown in Al-Skeini and Others [20] “ ... except when a state really does have effective control of territory, it cannot hope to secure Convention rights within that territory ” . The approach to State authority and control in Al-Skeini by Lord Brown and also Lord Justice Brooke in the Court of Appeal is summarised by Ralph Wilde, who notes that their approach requires a capacity to exercise public authority, because it is only in such circumstances that the State would actually be in a position to fulfill its obligations under the Convention. In other words, the Convention cannot be applicable in a generalised sense when the State does not enjoy such authority, since the obligations it contains in part presuppose such enjoyment. [21]

Therefore, I find it difficult to apply, in the unique circumstances of the present case, the previous case-law in IlaÅŸcu and Others and Catan and Others (cited above) , as suggested in paragraph 148 of the present judgment , to the effect that as long as it has not been established that Gulistan is occupied by another State, Azerbaijan exercises full control over it.

I perfectly understand the Court ’ s preoccupation with the idea that no areas of limited protection should be accepted within the Convention ’ s legal space. It is a long-standing approach both by the Court and by the Council of Europe that no de facto black holes are allowed to exist in Europe [22] . However, I find this judicial construction to be illusory, and we must accept that such “black holes” do exist – Transdniestria , Abkhazia, South Ossetia, Nagorno - Karabakh, to mention just some. Moreover, in a relatively recent decision in the case of Azemi v. Serbia [23] , the Court recogni s ed that such areas may also exist de jure – after Kosovo proclaimed its independence “there existed objective limitations which prevented Serbia from securing the rights and freedoms in Kosovo”. The Court was not able “point to any positive obligations that the respondent State had towards the applicant”, who complained of the non-enforcement of a judgment in his favour. Since Kosovo is not a party to the Convention, it would appear that it constitutes a “limited protection area” in terms of the Convention.

Further more , in the decision of Stephens v. Cyprus, Turkey and the United Nations [24] , in which the applicant complained of the continuing denial of access to her house, which was located in the buffer zone in Nicosia, controlled by the UN forces, the Court easily rejected the complaint as being incompatible ratione personae , since neither Turkey nor Cyprus had jurisdiction over the buffer zone, thus accepting the existence of one more “black hole” in Europe (apropos of this, the area consisted of five villages where about 8,000 people lived or worked).

Gulistan, not being an official “buffer zone” with or without the presence of peacekeepers, nevertheless remains, as described in the judgment, “the frontline between Azerbaijani and ‘ NKR ’ forces”. There would be nothing wrong in acknowledging that this is an area with “limited protection”. In fact, we are not talking about a limitation of rights; there are just no human beings living in this area to enjoy the rights guaranteed by the Convention, so no interference with these rights can be envisaged. Of course, people in a situation similar to that of the applicant can claim certain rights and interests, but these rights can relate only to the State ’ s positive obligations.

Thus , I find the conclusion in paragraph 150 of the present judgment , according to which “the situation at stake in the present case is more akin to the situation in Assanidze ”, to be strikingly wrong. In that case the Georgian Government encountered difficulties at a practical level in exercising their authority over the Ajarian Autonomous Republic, which was otherwise inhabited and fully operational. Contrary to that situation, as has been mentioned, Gulistan has remained an uninhabited territory since 1994. Consequently, although from a legal point of view Azerbaijan has jurisdiction over it, in practical terms this jurisdiction is significantly limited, as has been said earlier, comprising only positive obligations. Indeed, this was implicitly confirmed by the Grand Chamber in paragraph 226 of the present judgment , according to which “the Court consider[ed] it appropriate to examine the applicant ’ s complaint with a view to establishing whether the Government have complied with their positive obligations”.

So, what could be expected from Azerbaijan from the standpoint of positive obligations in the present case?

In Ilaşcu and Others (cited above) the Court found, in respect of Moldovan responsibility under the Convention, that it had to determine whether “the measures actually taken were appropriate and sufficient in the present case. When faced with a partial or total failure to act, the Court ’ s task is to determine to what extent a minimum effort was nevertheless possible and whether it should have been made”.

Azerbaijan and Armenia, I believe, share responsibility for the applicant ’ s prolonged inability to enjoy rights guaranteed by the Convention. Until the peace negotiations achieve a significant result, the military status quo in Gulistan will be preserved. Ironically, whilst the Court recogni s es Azerbaijan ’ s full jurisdiction over Gulistan and thus expects some action on its part to put an end to the continuing violations of the applicant ’ s rights, it is clear that any activity in the village by the respondent State, and any attempt to re-establish its control over the village, may threaten the maintenance of the ceasefire and end anger peace negotiations.

Nonetheless, given that the applicant has long been unable to gain access to his property, some minimum effort to secure compensation should be expected from Azerbaijan. Since, as can be seen from the case materials, the respondent State has never made any meaningful attempt to even consider the possibility of compensating the displaced Armenians for their lack of access to their property, I voted for a violation of positive obligations in this case.

PARTLY DISSENTING O PINION OF JUDGE GYULUMYAN

1 . I disapprove of the Court ’ s reasoning in some parts of the judgment but agree with the conclusions of the majority finding violations of Article 1 of Protocol No. 1 and Articles 8 and 13 of the Convention. I regret to have to disagree, however, with the Court ’ s decision not to examine Article 14 separately. I strongly believe that the Court should have reached the reverse conclusion and found a violation of Article 14, for the reasons set out below.

2 . The Court found in paragraph 279 of the judgment that the applicant ’ s complaints under Article 14 of the Convention amounted essentially to the same complaints already examined by the Court under Article 1 of Protocol No. 1 and under Articles 8 and 13 of the Convention, and therefore considered that no separate issue arose under Article 14 of the Convention.

3 . At first sight this approach seems to follow the previous case-law of the Court and in particular the Court ’ s approach in Cyprus v. Turkey ( [GC], no. 25781/94, ECHR 2001 ‑ IV ) , Xenides-Arestis v. Turkey ( no. 46347/99, 22 December 2005 ) , and Catan and Others v. the Republic of Moldova and Russia ([ GC], nos. 43370/04 and 2 others , ECHR 2012 ) .

4 . The issue here, though, is that , while in the above-mentioned cases the establishment of the respondent State ’ s jurisdiction was a cornerstone of the Court ’ s reasoning, in the present case the issue of extraterritorial jurisdiction was not raised. In other words, at the material time Azerbaijan exercised unconditional sovereign jurisdiction over the territories, which makes this case different from Cyprus v. Turkey and the above-mentioned cases.

5 . The Court ’ s failure to differentiate the present case from the others, and its consequent failure to raise a separate issue under Article 14 of the Convention, presumably stem from its lack of due regard to the fact that the respondent State forcefully displaced its own citizens from those territories on the basis of their ethnicity . It is pertinent to mention that the respondent State did not subject ethnic Azeri citizens to similar treatment.

6 . Under these circumstances one may reasonably assume that the explanation for the Court ’ s fundamental failure to differentiate between these two situations is its reluctance to pay due regard to the politico ‑ historical background to the case, which substantiates a finding of discriminatory treatment by the respondent State of thousands of people on the basis of their ethnicity.

7 . Nagorno-Karabakh (in Armenian, Artsakh ) is located in the north ‑ eastern area of the Armenian highlands. Since ancient times, it has been a province of Armenia and predominantly populated by ethnic Armenians. Clear evidence of this lies in the fact that there are thousands of Armenian Christian monuments, some of which date back as far as the fourth century AD, and in references to the region in the works of Strabo, Ptolemy, Plutarch, Dion Cassius, and others.

8 . After AD 387 Armenia was partitioned between Byzantium and Persia. Eastern Transcaucasia, including Nagorno-Karabakh, came under Persian rule. This did not affect the ethnic borders of the region, which remained the same throughout the centuries. Thus, it continued to be inhabited by Armenians.

9 . In 1805 the historical territory of Artsakh was artificiall y named “Khanate of Karabakh”. Along with many areas in e astern Transcaucasia, it was annexed to the Russian Empire by means of the Treaties of Gulistan (1813) and Turkmenchay (1828) which were signed between Russia and Persia.

10 . After the collapse of the Russian Empire, which resulted in a new arrangement of recently formed States in the Caucasus, Karabakh became a theatre of war. The Caucasus Bureau of the Russian Communist Party thereafter disregarded the Resolution of the League of Nations of December 1920 . It refused to accept a plebiscite as a popular mechanism for determining the borders between Armenia and Azerbaijan. Under immediate pressure from Stalin, the decision was made to separate Armenian-populated Nagorno ‑ Karabakh and Nakhichevan from Armenia by force. On 5 July 1921 the Caucasus Bureau of the Russian Communist Party adopted a political decision to annex Nagorno-Karabakh to Soviet Azerbaijan.

11 . The discriminatory treatment that the applicants faced in the present case can hardly be qualified as unprecedented. Taking advantage of the unsettled state of affairs following the First World War and the collapse of the Russian Empire, and in continuation of its policy of Armenian Genocide (1915), the Turkish forces joined arms with Azeri military units from 1918 to 1920 and proceeded to plunder and destroy hundreds of Armenian villages. On 28 March 1920 Shushi (the area ’ s capital) was burn t and plundered and its Armenian population annihilated.

12 . Throughout its Soviet history and despite calls from the international community, the Soviet Union and Azerbaijan arbitrarily denied Nagorno ‑ Karabakh ’ s appeal for self-determination. Every effort to discuss the dispute in a civili s ed fashion resulted in increased violence, economic blockades and massive disregard for the Armenian population ’ s rights. Massacres and mass murders of Armenians occurred hundreds of kilometres away from the Republic of Nagorno-Karabakh (the NKR) as assaults were organised in various Azerbaijani cities: Sumgait, Baku, Kirovabad, and later throughout Azerbaijan. This violence was followed by the 1991 ‑ 94 Azeri ‑ instigated war on the NKR, which resulted in thousands of casualties and destroyed an estimated 80% of Nagorno-Karabakh ’ s economy.

13 . The displacement and massacres of ethnic Armenians by Azeri and Soviet military units became even more violent after 10 December 1991, when, in the referendum, the overwhelming majority of the population of Nagorno ‑ Karabakh voted in favour of its independence from Azerbaijan. It should be mentioned that independence was declared in accordance with the legislation of the Union of Soviet Socialist Republics ( USSR ) in force at that time, namely “The regulation governing questions concerning a union republic seceding from the USSR” (3 April 1990). This law governed the right of national autonomous regions to determine independently their legal status when a republic seceded from the USSR.

14 . Using the weapons and war materials of the USSR ’ s 4 th Army that was headquartered on its territory, Azerbaijan engaged in wide-scale military actions against the people of Nagorno-Karabakh. During Operation Ring, which was conducted by Azeri and Soviet central forces, the population s of twenty-four Armenian villages were subjected to deportation within a three-week period. In the summer of 1992, just six months after the referendum in favour of independence, Azerbaijan placed about 50% of the NKR territory under its military occupation.

15 . There were times when almost 60% of the territory of Nagorno ‑ Karabakh was occupied. The capital city , Stepanakert , and other residential areas were almost incessantly subjected to massive air and artillery bombardment.

16 . Since the early days of the military offensive by Azerbaijan, many international bodies, including the E uropean U nion Parliament and the US Congress, have been actively engaged in efforts to find a resolution to the Nagorno ‑ Karabakh conflict. The documents adopted by international organisations refer in most cases to displacements, torture and killings of ethnic Armenians by Azeri forces. This evidence proves beyond reasonable doubt that the actions by Azerbaijan amounted to discrimination and ethnic cleansing of Armenians not only in Nagorno ‑ Karabakh but also in other major cities of Azerbaijan where Armenians historically represented a significant percentage of the population.

17 . Thus, on 7 July 1988 the European Parliament adopted a R esolution condemning the massacres in Sumgait and referring to the tragic events of February 1988. The R esolution acknowledged the deteriorating political situation that threatened the safety of the Armenians living in Azerbaijan and condemned the violence employed against Armenian demonstrators. It also called upon the Soviet authorities to ensure the safety of the 500,000 Armenians living in Azerbaijan and to ensure that those found guilty of having incited or taken part in the pogroms against Armenians were punished according to Soviet law. On 18 January 1990 the EU Parliament passed another R esolution calling for the immediate lifting of the blockade imposed on Armenia and Nagorno ‑ Karabakh.

18 . In 1989 the US Senate passed a R esolution highlighting America ’ s support for the fundamental rights and aspirations of the people of Nagorno ‑ Karabakh in general , and for a peaceful and fair settlement of the dispute over Nagorno-Karabakh specifically (S.J.Res.178).

19 . Section 907 of the United States Freedom Support Act of 24 October 1992 bans any kind of direct United States aid to the Azerbaijani g overnment, the only Republic of the former USSR to which aid is banned, until “the Government of Azerbaijan is taking demonstrable steps to cease all blockades and other offensive uses of force against Armenia and Nagorno-Karabakh” .

20 . Azerbaijan has ignored such demands for the cessation of offensive assaults and has continued its bombardments and attacks in Nagorno ‑ Karabakh. There can be no doubt but that their aim was and remains the ethnic cleansing of the territory of Nagorno ‑ Karabakh. I quote just one illustration from Azeri sources which drive s this point home – a statement of a former Azeri President:

“In order to preserve the territorial integrity of Azerbaijan, we paid much attention to Karabakh. Of course some dilettantes have blamed me for that. I did so firstly because Nagorno ‑ Karabakh had to be inhabited by the Azerbaijani population and secondly in order not to give the Armenians an opportunity to raise that question . ”

This is from the address given by H. Aliyev, President of Azerbaijan, on 24 January 2001 during the parliamentary hearings on the settlement of the conflict.

21 . The continuing ethnic discrimination against Armenians by Azerbaijan after its ratification of the Convention has also been recognised by the Committee on the Elimination of Racial Discrimination (Concluding Observations of the CERD: Azerbaijan, CERD/C/AZE/CO/4 (14 April 2005), the European Commission Against Racism and Intolerance (ECRI) of the Council of Europe in all three of its reports on Azerbaijan (adopted on 28 June 2002, 15 December 2006 and 23 March 2011), and the Advisory Committee on the Framework Convention for the Protection of National Minorities (Opinion on Azerbaijan, ACFC/INF/OP/I(2004)001 (22 May 2003); Second Opinion on Azerbaijan, ACFC/OP/II(2007)007 (9 November 2007)). The ECRI stated that it “ha[d] repeatedly recognized the link between the harsh comments regularly made in this country about the Nagorno-Karabakh conflict and the discrimination that Armenians coming under Azerbaijan ’ s jurisdiction encounter in their daily lives” and that it “consider[ed] that, today more than ever, considerable efforts [were] needed on the part of the Azerbaijan authorities to ensure that these persons [ d id] not feel threatened”. Unfortunately, the Court ignored this call.

22 . A finding of one violation of the Convention should not always release the Court from the obligation to examine other possible violations of the Convention. I therefore believe that the Court made an error in dismissing the separate issue under Article 14 of the Convention and should have examined all the circumstances, which ultimately would have led to a finding of a violation of Article 14 of the Convention.