LEGAL EXAMINATION EVALUATION OF THE ECHR DECISION ON THE REQUEST FOR INTERIM MEASURES LODGED BY ARMENIA AGAINST TURKEY
Nagorno-Karabakh is an autonomous region under Azerbaijani administration, whereith thethe majority is composed of the by the Armenian people population. Armenians who do not approve Azerbaijani sovereignty in over the region, is outmanoeuvringhold the field in longstanding conflicts, with the support of Armenia. The recent attack of the Armenian army on Tovuz Rayon of Azerbaijan has exacerbated the conflict in the region. Afterwards, Armenia requested fromto the European Court of Human Rights (“ECHR”) for interim measures lodged against Azerbaijan, which and the Court accepted this request in accordance with the Article 39 of its Rules of Procedure. Subsequently, with regard to the request lodged againstwith the allegation that Turkey allegedly for beingis indirectly included in the Nagorno-Karabakh conflict , another request for interim measures has been requested from the Court by Armenia, which again was ordered the Court indicated interim measures in favor of Armenia on 10.06.2020.
The Court notes that it calls on all States directly or indirectly involved in the conflict, including Turkey, to refrain from actions that contribute to breaches of the Convention rights of civilians, and to respect their obligations under the Convention refrain from taking any measures which might entail breaches of the Convention rights of the civilian population, including putting their life and health at risk. It also called upon parties to comply with their engagements under the Convention, particularly in respect of Article 2 (right to life) and Article 3 (prohibition of torture).
What are ınterım measures?
Interim measures are emergency measures pursuant to Article 39 of the ECHR Rules of Procedure, that are exceptionally indicated in situations where there is an imminent and absolute risk of serious and irreversible harm. (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 104, 4 February 2005 and Paladi v. Moldova [GC], no. 39806/05, §§ 86-90, 10 March 2009) Such measures are decided in connection with proceedings before the Court without prejudging any subsequent decisions on the admissibility or merits of the case in question.
Interim measures are applied in limited situations. These are where there is a risk of violation of the right to life (art.2), prohibition of torture (art.3) and,in some cases, the right to a fair trial (art.6) and the right to respect for private and family life (art.8). The majority of the applications concern expulsion and extradition.
As can be derivtermined from the definition sentence above, in order to indicate interim measures (i) there must be a serious and irreversible harm at stake and (ii) there must be an absolute and imminent risk for this harm to occur, the facts that support this fear and to submit them to the Court. Furthermore, the applicant must in particular specify in detail the grounds on which his or her particular fears are based, the nature of the alleged risks and the Convention provisions alleged to have been violated, and place them on a realistic and legal. The Court must dwell upon realistic and conclusive evidences which illustrate that above-cited imminent risk will be actualized.
If we read and apply these requırements for an ınterım measureexamıne these ınformatıons wıthın the scope of thıs case;
First, the subject of interim measures indicated by ECHR in Nagorno-Karabakh conflict shall not be Turkey, since evidences on Turkey’s “indirect” existence is based upon news from the Armenian press and social media posts. According to well settled jurisprudence of the Court, it is not possible to prove the risk and irreversible harm condition through partial sources without legal basis.
Besides, Armenia has to put an end to its own violations of fundamental human rights before requesting interim measures lodged against Azerbaijan and Turkey. The famous international public law doctrine “fraus omnia corrumpit” known as “clean hands” states that “who comes into equity must come with clean hands.”
Armenia’s actions, as a state, including firing on who unarmedshot civilians in the region, can be categorized as committed war crimes., an occupying state in the region pPursuant to the United Nations Security Council Resolutions no. 822, 853, 874 and 884, to requesting interim measures by claiming the violation of the right to life and the prohibition of torture by an occupying state in the region, is “legally” without basis and “politically” hypocrite.
It is obvious that while reaching this conclusion, ECHR has put aside; sine qua non conditions for the decision, realistic and required legal facts and evidences despite of its situated case law and decided with political motives. Consequently, aforesaid decision taken by the Court constitutes a political decision rather than a legal one.
