CONCURRING OPINION OF JUDGE HARUTYUNYAN

Although I voted with the majority in the present case, I must emphasise a number of remarks in this concurring opinion. First, I acknowledge the Court’s conclusion, according to which 10 November 2020 constitutes an important turning point and therefore, “at the relevant time (that is, prior to the latest hostilities between Armenia and Azerbaijan which ended on 10 November 2020), Armenia had jurisdiction over the matters complained of” (see paragraph 48 of the judgment). In this context, the consequences of the trilateral declaration signed on 10 November 2020 are envisaged in a detailed analysis in my concurring opinion appended to the judgment in Avanesyan v. Armenia (no. 12999/15, 20 July 2021). I nevertheless think that the Court should have gone further in its conclusion and mentioned that since 10 November 2020 Armenia has not held “effective control” over Nagorno ‑ Karabakh.

I welcome the Court’s reiteration in this judgment in respect of the fact 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 v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, § 115, ECHR 2012 (extracts)). Consequently, “the concept of ‘effective control’ within the meaning of the Court’s case-law is not equated to the term ‘effective control’ for the purposes of international humanitarian law” (see Georgia v. Russia (II) [GC], no. 38263/08, § 196, 21 January 2021).

It is noteworthy that the lower standards accepted by the Court to establish extraterritorial jurisdiction of the member State are meant to prevent “grey areas” in the protection of Convention rights and freedoms. However, the current test may raise issues due to the fact that positive obligations are in fact limited and sometimes may not be in line with the real situation. Therefore, the application of this test may lead to a situation where a member State is required to secure Convention rights when it is not in a position to do so, thus placing the State and Council of Europe bodies in a difficult situation. The present case may serve as an example of such an outcome. Even before the ceasefire Armenian authorities did not have the power to influence the NKR authorities in order to ensure the registration of the applicant organisation.

The problem is not whether the NKR authorities were right or not. My position consists in an acknowledgment that there has been a violation in the present case. The problem is that the current test for establishing “effective control” needs to be developed in order not to put the member States and Council of Europe bodies in a problematic situation where the national authorities would be obliged to fulfil Convention obligations that fall outside their control.