DISSENTING OPINION OF JUDGE HAJIYEV

In this opinion I would like to set out the reasons why I disag ree with the majority opinion.

First of all I would like to point out that Gulistan is a historical place for Azerbaijanis. It is th e village where the Russian Empire and Persia concluded a treaty in 1813 which went down in history as the Gulistan Treaty, according to which the Northern Azerbaijan i Khanates, including the Karabakh Khanate , became part of the Russian Empire. In his poem , Gulistan , the Azerbaijani poet , B akhtiyar Vahabzade h , who was prosecuted by the Soviet authorities in the 19 60s, described the destiny of the nation divided by this event. I am starting with this brief background information in order to show that Azerbaijan had no interest in ruining this historical place.

Accordingly, t he measures described in paragraph 32 of the present judgment were not directed against the Armenian part of the population, wh o , according to the applicant, were living there comfortably and not in poor conditions , but were taken by the Soviet authorities in order to destroy the insurgents concentrated there. The applicant , like thousand s of other people from Karabakh , became a victim of the conflict and nat urally my dissenting opinion does not intend to overlook the difficulties encountered by him and of which he complained to the Court in August 2006 in response to the complaints submitted in April 2005 and communicated by the Court in the case of Chiragov and Others v. Armenia [GC], no. 13216/05, ECHR 2015 .

The w eakness of the complaint was visible to the naked eye alre ady at the communication stage. Therefore, as is clear from the judgment, the Court faced major difficulties in justifying its position. Its reasoning does not appear at all convincing. Moreover, the very prospect of examin ing these two different cases at the same time is an unappealing one , since the Court may thus be wrongly understood as equating, to some extent, aggressor and victim. This unfortunate impression could have be en avoid ed if Armenia had been involved in the case, but the Court was precluded from examining Armenia ’ s responsibil ity for the violations complained of.

I would begin by saying that the parties agree on the fact that Gulistan is situated i n the internationally recognised territory of Azerbaijan. The following question arises : what are the Armenian military forces doing , in the territory of a sovereign S tate, closing access to the village from one side and mining the surrounding area? The Azerbaijani a rmy is located on the other side of the village, so access to the village is controlled by the Azerbaijani a rmy. At first sight the present case may seem similar to some other cases already examined by the Court , but only at first sight. It is true that the Court has developed criteria according to which jurisdiction and effective control are established and , at first sight , some of them, for example those in IlaÅŸcu and Others v. Moldova and Russia ( [GC], no. 48787/99, ECHR 2004 ‑ VII ) , Assanidze v. Georgia ( [GC], no. 71503/01, ECHR 2004 ‑ II ) , and so on, may be useful and applicable to the present case. But this is only at first sight. In reality, the present case is distinguishable from earlier cases in which the Court has been called upon to examine under Article 1 of the Convention the issue of effective control over the area where the alleged violations have occurred . The deserted village , surrounded from both sides by the opposing armed forces, and mined at its edges is, in the language o f diplomats, a Line of Contact (LoC) or c easefire l ine , and the applicant, being in his homeland , could successfully address his question to the Armenian authorities and ask what the Armenian armed forces are doing in the territory of another sovereign State closing his access to his homeland , or at least complain about the actions of both States. However, these are rather rhetorical questions ...

I will focus on the main question, which, in my view, is an important legal question to be answered in the present case: whether Azerbaijan has effective control over Gulistan. If we turn to international law, it does not contain any rules specifically applicable to zones which are located on a ceasefire line between the military positions of two opposing armies. As the Court noted in the case of Bankovi ć and Others v. Belgium and Others ( ( dec.) ([GC], no. 52207/99, ECHR 2001-XII) , from the standpoint of public international law, the words “within their jurisdiction” in Article 1 of the Convention must be understood to mean that a State ’ s jurisdictional competence is primarily territorial, but also that jurisdiction is presumed to be exercised normally throughout the State ’ s territory.

This presumption may be limited in exceptional circumstances, particularly where a State is prevented from exercising authority over part of its territory. That may be as a result of military occupation by the armed forces of another State which effectively controls the territory concerned (see Loizidou v. Turkey (merits), 18 December 1996, Reports of Judgments and Decisions 1996 ‑ VI , and Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001 ‑ IV ), acts of war or rebellion, or the acts of a foreign State supporting the installation of a separatist State within the territory of the State concerned. The Court has also noted that , in order to be able to conclude that such an exceptional situation exists , the Court must examine on the one hand all the objective facts capable of limiting the effective exercise of a State ’ s authority over its territory and, on the other hand, the State ’ s own conduct. The undertakings given by a Contracting State under Article 1 of the Convention include , in addition to a duty to refrain from interfering with the enjoyment of the rights and freedoms guaranteed, positive obligations to take appropriate steps to ensure respect for those rights and freedoms within its territory ( see Z and Others v. the United Kingdom [ GC ] , no. 29392/95, § 73, ECHR 2001-V). Those obligations remain even where the exercise of the State ’ s authority is limited. Taking these principles into account, the Court found that the Republic of Moldova, even in the absence of effective control over the Transdniestria n region , still ha d a positive obligation under Article 1 of the Convention.

However , I would like to refer to the partly dissenting opinion of Judge Bratza joined by J udges Rozakis, Hedigan, Thomassen and Panţîru in Ilaşcu and Others (cited above) , in which the judges considered that the principal questions which f e ll to be determined were (i) whether this was an exceptional case in which the applicants were to be regarded as within the “jurisdiction” of the Russian Federation despite being at all material times outside the territory of that State and (ii) whether, being within the territory of the Republic of Moldova, the applicants were to be regarded as within its “jurisdiction” so as to engage the responsibility of that State or whether, exceptionally, the presumption that they had been and were within the jurisdiction of the Republic of Moldova was rebutted. In the author ’ s opinion, the two questions were closely linked and depend ed , as the Court ’ s judgment in the case makes clear, on a close analysis of the factual situation existing in, and relating to, the region. Further more , analy s ing the conclusion of the majority, the author found that he could not agree with the majority and accept the proposition that those within a part of the territory of a State over which, as a result of its unlawful occupation by a separatist administration, the State was prevented from exercising any authority or control could nevertheless be said to be within the “jurisdiction” of that State according to the autonomous meaning of that term in Article 1 of the Convention, which term presuppose d that the State ha d the power “to secure to everyone ... the rights and freedoms” defined therein. Judge Bratza found it equally difficult to

“accept the conclusion of the majority of the Court that in such a factual situation those within the territory remain [ed] ‘ within [the] jurisdiction ’ of the State but that the scope of that ‘ jurisdiction ’ [was] reduced, the State continuing to owe positive obligations with regard to the Convention rights of everyone in the territory”.

The author found the very use of the term “positive obligations of the State” and the reliance placed in the judgment on the case-law of the Court under Article 1 concerning such obligations misleading and unhelpful in the context of Ilaşcu and Others . Judge Bratza rightly highlighted that

“ [ t ] hat case-law – with its references to the fair balance to be struck between the general interest and the interests of the individual and the choices to be made in terms of priorities and resources – was developed in a factual context where the respondent State exercised full and effective control over all parts of its territory and where individuals within that territory were indisputably within the ‘ jurisdiction ’ of the State for Convention purposes”.

In his view, the Court ’ s reasoning could not be readily adapted to the fundamentally different context in which a State was prevented by circumstances outside its control from exercising any authority within the territory and where the very issue was whether individuals within the territory were to be regarded as within the “jurisdiction” of the State for Convention purposes.

Let us turn to the facts of the present case, on the basis of which the Court has concluded t hat the alleged violations are within the “jurisdiction” of Azerbaijan within the meaning of Article 1 of the Convention and are capable of engaging the responsibility of the r espondent State.

First and foremost , I would like to note that, as t he Court has acknowledged , Gulistan is located o n the frontline between Azerbaijani and Armenian forces ( see paragraph 142 of the present judgment ). Geographically, the village is situated to the north of these Azerbaijani territories occupied by the Armenian military forces, on the very border of the LoC , which passes through the R iver Injechay, where Azerbaijani military positions are on the north bank and Armenian troops on the south bank of the river. Gulistan is totally deserted , its surroundings are heavily mined by both sides and violations of the ceasefire are frequent. The unusual feature in this case, as both Azerbaijan and Armenia agree, is that Gulistan, where the applicant claims to have property, is located on the LoC . Both Azerbaijani and Armenian maps bear this out . Neither side claim s otherwise. The only argument is about the exact position of the forces around the village. This issue is very important for deciding the question of effective control over the village. Before moving on to an examination of this question, the following general information must be taken into account. The LoC marks the ceasefire line existing at the end of the 1992-9 4 war, which was frozen by the Bishkek Protocol of May 1994. In view of that, the Court is faced not with an examination of jurisdiction with regard to an area clearly within the jurisdictional competence of a C ontracting P arty, nor with the situation of an area clearly under the effective control of another C ontracting P arty, as was the case in IlaÅŸcu and Others (cited above) or other cases already examined by the Court , but rather with a small piece of land that lies on the very ceasefire line itself. I n practice t he Line of Contact is maintained by the stationing of the armed forces of the parties and the extensive use of land mines. It has been a long time since any civilians lived in the village. There are regular violent exchanges of fir e across the LoC , including in the Gulistan area.

Now I would like to turn to the evidence which , according to the Court, permits it to conclude that effective control by Azerbaijan exists. I would like to observe that in this kind of case, taking into account the special circumstances, the Court has to act as a court of first instance. This in turn permits the Court, taking into account its requirements, as , for instance, those formulated in Nach ova and Others v. Bulgaria ( [GC], nos. 43577/98 and 43579/98, ECHR 2005 ‑ VII ) , to examine the evidence , having regard to its reliability and persuasiveness.

Thus, in the present case, the unreliability of the evidence submitted by the applicant and the third party was obvious: the “evidence” that a man was walking between houses in ruin s, a man without a uniform or insignia belonging to any army , or that smoke could be seen rising from the chimneys of some houses, when it was not c lear who had lit a fire in one of the few surviv ing house s. This evidence from the DVD submitted in 2008 is evidence to which the Court unfortunately refer red in paragraph 137 of the present judgment. It is obvious that these materials did not prove anything, so , further on in the judgment , the Court, in the hope of find ing something proving Azerbaijan ’ s military presence in the village itself , referred to the Geospatial Technologies and Human Rights Project of the American Association for the Advancement of Science (AAAS). In my view, this did not provide any evidence either , even though the Court interpret ed it as such in the same paragraph . Thus, in my opinion , the results of the AAAS report, in particular image 12 , clearly show that there are trenches in or at least very close to the village. T he representatives of the AAAS do n o t claim that the trenches are located in Gulistan. They just say in or behind Gulistan. If all the elements of the AAAS report are taken together, as they are presented and interpreted in paragraph 137, they are contradictory, since they claim that the trenches can be seen in the 2005 and 2009 images, but are less clearly distinguishable in the 2012 image, because they are not being used. Besides, they recorded that the area was, o n the whole, un inhabited . Accordingly, if the report does not claim that the trenches are located in the village, that there are military forces in the village, or that the trenches are being used , can it be claim ed that there is an Azerbaijani military presence in the village? Particularly in the light of the Court ’ s observation that “as follows from the AAAS report ... trenches fell into disuse in the period between 2009 and 2012 and are therefore less clearly visible”. That being so, by 2012, this must mean that they are not being used.

Accordingly, in my opinion, there is no evidence proving Azerbaijan ’ s effective control over Gulistan. If we are to conclude otherwise, then it has to be considered that Armenia, which has occupied part of the territories of another State, also has effective control over this area. As it is confirmed that , due to continuing fighting, no civilian is able to enter the village and the village is totally deserted and heavily mined from all sides, I conclude that neither of the opposing parties has effective control of the village. The case material clearly indicate s that Gulistan is a de facto “ no-man’s-land ”. This is, I repeat, the characteristic of the present case which distinguishes it from other cases in which the Court ha s decided the question of jurisdiction and effective control. It is a totally new situation and the first case in which the Court has been asked to answer the question of effective control over a “ no-man’s-land ” situated o n a n LoC between two hostile parties and has had to solve this new legal issue. On the one hand , it is an internationally recogni s ed territory of Azerbaijan and it is clear that no areas of limited protection should be accepted within the Convention legal space . T he Convention requires that the State secure the rights and freedoms guaranteed under the Convention to everyone under their jurisdiction . On the other hand , the conclusion – contrary to the facts – that effective control has to be attributed to one of the parties cannot be based on international law and contradicts the very concept of “effective” control. In reality t he present case does not in any way resemble the classic model of jurisdiction, and in the obvious absence of effective control as a precondition of positive obligation s , it is impossible to speak of any positive obligation. In paragraph 140 of the present jud g ment the Court affirms that “a limitation of a State ’ s responsibility on its own territory to discharging positive obligation s has only been accepted in respect of areas where another State or separatist regime exercise s effective control”. It is the presence of the Armenian occupying forces on the other side of Gulistan that not only closes access to the village but also excludes not only effective but any control at all over this territory of Azerbaijan and therefore discharges Azerbaijan of its posi tive obligation s .

In Ilaşcu and Others (cited above) the Court, taking into account the fact that after rati fication of the Convention the Republic of Moldo va had to enter in to contact with the separatist regime in order to tak e certain measure s to secure certain rights of the applicants guaranteed un der the Convention, concluded that the responsibility of the Republic of Moldova could be engaged under the Convention on account of its failure to discharge its positive obligations with regard to the acts complained of which had occurred after May 2001. The Court also found that the Moldov an authorities remain ed under an obligation “to take all the measures in their power, whether political, diplomatic, economic, judicial or other measures ... to secure the rights and freedoms guaranteed by the Convention to those formally within their jurisdiction, and therefore to all those within Moldova ’ s internationally recogni s ed borders”. If these requirements were to be applied to Azerbaijan, it “must endeavo u r, with all the legal and diplomatic means available to it vis-à-vis foreign States and international organis ations, to continue to guarantee the enjoyment of the rights and freed oms defined in the Convention”. As indicated in Ilaşcu and Others ,

“ [ i ] n determining the scope of a State ’ s positive obligations, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, the diversity of situations obtaining in Contracting States and the choices which must be made in terms of priorities and resources. Nor must these obligations be interpreted in such a way as to impose an impossible or disproportionate burden ” ( § 332 ).

Hence, the measures taken in compliance with the positive obligations identified in Ilaşcu and Others have to be “appropriate and sufficient” and the Court must test this in the light of the “minimum effort” required. The question whether a State hampered by an in ab ility to exercise its authority over a part of its territory has complied with its positive obligations has to be assessed by the Court on a case-by - case basis. However, as the research report indicates, some of those positive obligations were identified by the Court in Ilaşcu and Others . Some of these obligations are of a general nature, concerning the general policies and conduct of the State , and others are of an individual nature, that is , related to the applicant ’ s situation.

As indicated i n IlaÅŸcu and Others ( § 339 ) , a State hampered by an inability to exercise its authority over part of its territory has to take measures ( 1) to assert and reassert its sovereignt y over the disputed territory, ( 2) to refrain from supporting the separatist regime and ( 3) to re ‑ establish control over that part of its sovereign territory. In my opinion , the defendant State is taking all these measures to re-establish its sovereignty not only over Gulistan, but also over all the occupied territories, is refrain ing from supporting the separatist regime and call ing on the world community to adhere to this position as well and to respect the sovereign right of the State , and is trying , by every means, to re-establish i ts control over its territory.

In this regard, I would like to refer to information already given at the admissibility stage and in the further submissions of the Government. These submissions confirm the continuing opposition of Azerbaijan to the unlawful occupation of Nagorno-Karabakh and the surrounding territories by Armenia. Azerbaijan ’ s attempt to re-establish control over its alienated territory is demonstrated through its support of the OSCE Minsk P rocess as well as continuing efforts in the United Nations. A s far as the latter is concerned, the General Assembly decided in 2004 to include an item entitled , “The situation in the occupied territories of Azerbaijan” in its agenda. Regular discussions have followed. In this regard it can be noted that the General Assembly adopted two R esolutions ( A/RES/ 60/285 of 7 September 2006 and A/RES/ 62/243 of 14 March 2008) reaffirming continued respect and support for the sovereignty and territorial integrity of Azerbaijan wit hin its internationally recognis ed borders. The process is continuing under the auspices of the OSCE. The Minsk P rocess commenced in 1992 and Azerbaijan has made continuing and consistent efforts to resolve the dispute peacefully. The Basic Principles (also called “the Madrid Principles”) presented by the three C o- C hairs of the Minsk G roup call for : the return of the territories surrounding Nagorno-Karabakh to Azerbaijani control; an interim status for Nagorno-Karabakh providing guarantees for security and self-governance; a corridor linking Armenia to Nagorno-Karabakh; future determination of the final legal status of Nagorno-Karabakh through a legally binding expression of will; the right of all internally displaced persons (IDPs) and refugees to return to their former places of residence; and international security guarantees that would include a peacekeeping operation. Azerbaijan takes part in the regular meetings held by the C o - C hairs with the Foreign Ministers and the Presidents of Armenia and Azerbaijan. Azerbaijan has offered every support for this process, believing it to be the best means by which it can re-establish its control over the occupied territories. In these discussions, Azerbaijan has made it clear that it is ready to grant Nagorno-Karabakh “the highest status of self-rule” within Azerbaijan.

Azerbaijan has always refrained from supporting the regime established by the relevant separatist forces and has taken and continues to take all possible political, judicial and other measures at its disposa l to re-establish its control. In contrast to IlaÅŸcu and Others (cited above) , Azerbaijan avoids any contact with the separatist regime.

In IlaÅŸcu and Others , the Court specified that it was not for the Court to specify the most appropriate measures to take, but only to verify the will of the sovereign S tate, expressed through specific acts or measures to r e ‑ establish such control. In my opinion, this means that these obligations have to be examined in the light of the circumstances of each case. All the above-mentioned factors show that Azerbaijan has taken and continues to take all possible measures and has therefore fully complied with its positive obligations of a general nature.

As to the special duties relating to the individual applicant, this type of positive obligation has been identified in the case-law in cases such as Ilaşcu and Others (cited above) , Ivan ţ oc and Others v. Moldova and Russia ( no. 23687/05 , 15 November 2011 ) and Catan and Others v. the Republic of Moldova and Russia ( [GC], nos. 43370/04 and 2 others , ECHR 2012 ) . These obligations consist of trying to solve the applicant ’ s fate by ( 1) political and diplomatic and ( 2) practical and technical means and ( 3) taking appropriate judicial measures to safeguard the applicant ’ s rights.

In this regard it should be noted that in the some what similar cases already examined by the Court it only found a violation of this type of po sitive obligation in the case of Ilaşcu and Others , where the violations in question related to Article 3 and Article 5 issues. According to the Court ’ s general case-law concerning the core rights, the scope of the State ’ s obligations in relation to the effective enjoyment of these rights is, as a rule, extremely broad.

The present case concerns property rights , and the measures that Azerbaijan would be required to take must , according to the general case ‑ law of the Court, depend on the general and local context as well as a balance between the general interests and the individual ’ s rights. The particularity of this case is, as I have noted, the precise situation around the village of Gulistan, which lies, as explained above, on the ceasefire line between the two opposing forces. The measures that can realistically be taken are closely linked to the fact of occupation of these lands by one of the Contracting States to the Convention, which, according to the very nature of the Convention, must create the condition s necessary for the return of the IDP s and refugees to their homelands.

I t would constitute a gross failure of duty and a probable violation of Article 2 of the Convention were Azerbaijan to permit civilians to enter the village of Gulistan, which is a dangerous area with mines planted in the vicinity and with the armed forces of both sides patrolling the area. T he village is situated on the frontline and the regularity of violations of the ceasefire would be a source of constant risk to the lives of individuals if they were to inhabit the area.

A State, b y the very fact of o ccupation of the territories of another State, prevent s it from exercising any authority or control over territory within its borders. As Judge Bratza said in his above- mentioned dissenting opinion in IlaÅŸcu and Others (cited above) , responsibility could

“only be engaged in exceptional circumstances where the evidence before the Court clearly demonstrates such a lack of commitment or effort on the part of the State concerned to reassert its authority or to reinstate constitutional order within the territory as to amount to a tacit acquiescence in the continued exercise of authority or ‘ jurisdiction ’ within the territory by the unlawful administration ” .

Moreover , Azerbaijan has not enacted any law depriving the applicant or any other person who has left their propert y as a result of the Nagorno ‑ Karabakh conflict of their property rights . On the contrary, the right of all IDPs and refugees to return to their former places of residence has always been a subject of the negotiations and is included among the Basic Principles mentioned above.

As the Court has noted, as long as access to the property is not possible , the State ha s a duty to take alternative measures in order to secure property rights.

However, when examining the question of positive obligations with regard to an individual applicant, the Court must not overlook the requirement that the measures expected from the State must not be an excessive burden on the State. In this regard and in order to ascertain the overall economic consequences of the conflict for Azerbaijan, the following factors must be taken into consideration: f irstly, 20% of the Azerbaijani territories are under Armenian occupation and , s econdly, as a result of the conflict in and around Nagorno-Karabakh , 800,000 individuals have become IDP s , in addition to the 200,000 refugees from Armenia; 20,000 people have been killed; 50,000 people have been wounded or bec o me disabled; and more than 4,000 Azerbaijan i citizens are still missing. The aggression against Azerbaijan has severely damaged the socio-economic sphere of the country. In the occupied territories , six cities, twelve towns, 830 settlements, and hundreds of hospitals and medical facilities have been burn t or otherwise destroyed. Hundreds of thousands of houses and apartments and thousands of community and medical buildings have been destroyed or looted. Hundreds of libraries have been plundered and millions of books and valuable manuscripts have been burn t or otherwise destroyed. Several S tate theatres, hundreds of clubs and dozens of music schools have been destroyed. Several thousand manufacturing, agricultural and other kinds of factories and plants have been pillaged. The hundred - kilomet re -long irrigation system s ha ve been totally destroyed. About 70% of the summer pastures of Azerbaijan remain in the occupied zone. The regional infrastructure , including hundreds of bridges, hundreds of kilomet re s of roads , thousands of kilomet re s of water and gas pipelines and dozens of gas distribution stations have been destroyed. The war against Azerbaijan has also had catastrophic consequences for its cultural heritage in the occupied territories. According to preliminary data, the overall economic loss inflicted on Azerbaijan as a result of Armenian aggression is estimated at 300 billion U nited States dollars . Added to that is the non-pecuniary damage, which is obviously impossible to quantify . Thirdly, the State has supported and continues to support financially all the IDPs and refugees from Armenia with special social allowances.

Consequently, imposing further positive obligations on a State which is the victim of occupation by a neighbo u r ing State will place an extremely excessive burden on th at State. I conclude that Azerbaijan has complied with its positive obligations under the Convention by taking all possible and realistic measures. Contrary to the situation in Chiragov and Others (cited above) , where only the former inhabitants of Azeri origin of occupied Lachin are precluded from having access to their property, in the present case both the Armenian and Azeri residents of Gulistan are equal ly victims of Armenian aggression.

For these reasons, I conclude that the applicant ’ s complaints do not co me within the jurisdiction of Azerbaijan for the purposes of Article 1 of the Convention and that Azerbaijan has not failed to discharge any obligation in respect of the applicant imposed by that Article and that the responsibility of Azerbaijan is accordingly not engaged in respect of the violations of the Convention complained of by the applicant.