ECHR Grand Chamber – Article 1
Jurisdiction of states
Jurisdiction of Armenia as regards Nagorno-Karabakh and the adjacent occupied territories
Article 8
Article 8-1
Respect for family life
Respect for home
Respect for private life
Denial of access to homes to Azerbaijani citizens displaced in the context of the Nagorno-Karabakh conflict: violation
Article 13
Effective remedy
Lack of effective remedy in respect of loss of homes and property by persons displaced in the context of the Nagorno-Karabakh conflict: violation
Article 1 of Protocol No. 1
Positive obligations
Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Possessions
Armenia’s failure to take measures to secure property rights of Azerbaijani citizens displaced in the context of the Nagorno-Karabakh conflict: violation
Facts – The applicants are Azerbaijani Kurds who lived in the district of Lachin, in Azerbaijan. They stated that they were unable to return to their homes and property there, after having been forced to leave in 1992 during the Armenian-Azerbaijani conflict over Nagorno-Karabakh.
At the time of the dissolution of the Soviet Union in December 1991, the Nagorno-Karabakh Autonomous Oblast (‘the NKAO’) was an autonomous province landlocked within the Azerbaijan Soviet Socialist Republic (‘the Azerbaijan SSR’). There was no common border between the NKAO and the Armenian Soviet Socialist Republic (‘the Armenian SSR’), which were separated by Azerbaijani territory, at the shortest distance by the district of Lachin. In 1989 the NKAO had a population of approximately 77% ethnic Armenians and 22% ethnic Azeris. In the district of Lachin, the majority of the population were Kurds and Azeris; only 5-6% were Armenians. Armed hostilities in Nagorno-Karabakh started in 1988. In September 1991 – shortly after Azerbaijan had declared its independence from the Soviet Union – the Regional Council of the NKAO announced the establishment of the ‘Nagorno-Karabakh Republic’ (‘NKR’), consisting of the territory of the NKAO and the Shahumyan district of Azerbaijan. Following a referendum in December 1991 – boycotted by the Azeri population – in which 99.9% of those participating voted in favour of the secession of the NKR from Azerbaijan, the ‘NKR’ reaffirmed its independence from Azerbaijan in January 1992. After that, the conflict gradually escalated into full-scale war. By the end of 1993, ethnic Armenian forces had gained control over almost the entire territory of the former NKAO as well as seven adjacent Azerbaijani regions. The conflict resulted in hundreds of thousands of internally-displaced people and refugees on both sides. In May 1994 the parties to the conflict signed a cease-fire agreement, which holds to this day. Negotiations for a peaceful solution have been carried out under the auspices of the Organization for Security and Co-operation in Europe (OSCE). However, no final political settlement of the conflict has so far been reached. The self-proclaimed independence of the ‘NKR’ has not been recognised by any state or international organisation. Prior to their accession to the Council of Europe in 2001, Armenia and Azerbaijan both gave undertakings to the Committee of Ministers and the Parliamentary Assembly, committing themselves to the peaceful settlement of the Nagorno-Karabakh conflict.
The district of Lachin, where the applicants lived, was attacked many times during the war. The applicants alleged that troops of both Nagorno-Karabakh and the Republic of Armenia were at the origin of the attacks. The Armenian Government maintained, however, that Armenia did not participate in the events, but that military action was carried out by the defence forces of Nagorno-Karabakh and volunteer groups. In mid-May 1992 Lachin was subjected to aerial bombardment, in the course of which many houses were destroyed. The applicants were forced to flee from Lachin to Baku. Since then they have not been able to return to their homes and properties because of Armenian occupation. In support of their claims that they had lived in Lachin for most of their lives until their forced displacement and that they had houses and land there, the applicants submitted various documents to the Court. In particular, all six applicants submitted official certificates (‘technical passports’) indicating that houses and plots of land in the district of Lachin had been registered in their names; birth certificates, including of their children, and/or marriage certificates; and written statements from former neighbours confirming that the applicants had lived in the district of Lachin.
Law
(a) Preliminary objections
(i) Exhaustion of domestic remedies – The respondent Government had not shown that there was a remedy – whether in Armenia or in the ‘NKR’ – capable of providing redress in respect of the applicants’ complaints. The legal provisions referred to by them were of a general nature and did not address the specific situation of dispossession of property as a result of armed conflict or in any other way related to a situation similar to that of the applicants. None of the domestic judgments submitted related to claims concerning the loss of homes or property by persons displaced in the context of the Nagorno-Karabakh conflict. Furthermore, given that the respondent Government had denied that their authorities had been involved in the events giving rise to the applicants’ complaints or that Armenia exercised jurisdiction over Nagorno-Karabakh and the surrounding territories, it would not have been reasonable to expect the applicants to bring claims for restitution or compensation before the Armenian authorities. Finally, as no political solution to the conflict had been reached and military build-up in the region had escalated in recent years, it was unrealistic to consider that any possible remedy in the unrecognised ‘NKR’ could in practice provide redress to displaced Azerbaijanis.
Conclusion: preliminary objection dismissed (fourteen votes to three).
(ii) Victim status – The Court’s case-law had developed a flexible approach regarding the evidence to be provided by applicants who claimed to have lost their property and home in situations of international or internal armed conflict. A similar approach was reflected in the UN ‘Principles on Housing and Property Restitution for Refugees and Displaced Persons’ (Pinheiro Principles). The most significant pieces of evidence supplied by the applicants were the technical passports. Being official documents, they all contained drawings of houses and stated their sizes and measurements etc. The sizes of the plots of land in question were also indicated. The passports were dated between 1985 and 1990 and contained the applicants’ names. Moreover, the passports included references to the respective land allocation decisions. In the circumstances, they provided such prima facie evidence of title to property that had been accepted by the Court in many previous cases. The applicants had submitted further prima facie evidence with regard to property, including statements by former neighbours. Also the documents concerning the applicants’ identities and residence lent support to their property claims. Moreover, while all but the sixth applicant had failed to present title deeds or other primary evidence, regard had to be had to the circumstances in which they had been compelled to leave the district, abandoning it when it had come under military attack. Accordingly, the applicants had sufficiently substantiated their claims that they had lived in the district of Lachin for major parts of their lives until being forced to leave, and that they were in possession of houses and land at the time of their flight.
Under the Soviet legal system, there was no private ownership of land, but citizens could own residential houses. Plots of land could be allocated to citizens for special purposes such as farming or construction of individual houses. In that case, the citizen had a ‘right of use’, limited to the specific purpose, which was protected by law and could be inherited. There was therefore no doubt that the applicants’ rights in respect of the houses and land represented a substantive economic interest. In conclusion, at the time they had had to leave the district of Lachin, the applicants had held rights to land and to houses which constituted ‘possessions’ within the meaning of Article 1 of Protocol No. 1. There was no indication that those rights had been extinguished afterwards; their proprietary interests were thus still valid. Moreover, their land and houses also had to be considered their ‘homes’ for the purposes of Article 8 of the Convention.
Conclusion: preliminary objection dismissed (fifteen votes to two).
(iii) Jurisdiction of Armenia – In the Court’s view, it was hardly conceivable that Nagorno-Karabakh – an entity with a population of less than 150,000 ethnic Armenians – had been able, without the substantial military support of Armenia, to set up a defence force in early 1992 that, against the country of Azerbaijan with approximately seven million people, had not only established control of the former NKAO but also, before the end of 1993, had conquered the whole or major parts of seven surrounding Azerbaijani districts. In any event, the military involvement of Armenia in Nagorno-Karabakh was, in several respects, formalised in 1994 through the ‘Agreement on Military Co-operation between the Governments of the Republic of Armenia and the Republic of Nagorno-Karabakh’ which provided, in particular, that conscripts of Armenia and the ‘NKR’ could do their military service in the other entity. The Court noted also that numerous reports and public statements, including from members and former members of the Armenian Government, demonstrated that Armenia, through its military presence and by providing military equipment and expertise, had been significantly involved in the Nagorno-Karabakh conflict from an early date. Statements from high-ranking officials, even former ministers and officials, who had played a central role in the dispute in question were of particular evidentiary value when they acknowledged facts or conduct which appeared to go against the official stance that the armed forces of Armenia had not been deployed in the ‘NKR’ or the surrounding territories. They could then be construed as a form of admission. Armenia’s military support had continued to be decisive for the control over the territories in question. Furthermore, it was evident from the facts established in the case that Armenia had given the ‘NKR’ substantial political and financial support; its citizens were moreover required to acquire Armenian passports to travel abroad, as the ‘NKR’ was not recognised by any State or international organisation. In conclusion, Armenia and the ‘NKR’ were highly integrated in virtually all important matters and the ‘NKR’ and its administration survived by virtue of the military, political, financial and other support given to it by Armenia. Armenia thus exercised effective control over Nagorno-Karabakh and the surrounding territories.
Conclusion: preliminary objection dismissed (fourteen votes to three).
(b) Merits
Article 1 of Protocol No. 1: The applicants held rights to land and to houses which constituted ‘possessions’ for the purposes of that provision. While the applicants’ forced displacement from Lachin fell outside the Court’s temporal jurisdiction, the Court had to examine whether they had been denied access to their property after the entry into force of the Convention in respect of Armenia in April 2002 and whether they had thereby suffered a continuous violation of their rights.
There had been no legal remedy, whether in Armenia or in the ‘NKR’, available to the applicants in respect of their complaints. Consequently, they had not had access to any legal means by which to obtain compensation for the loss of their property or to gain physical access to the property and homes left behind. Moreover, in the Court’s view, it was not realistic in practice for Azerbaijanis to return to Nagorno-Karabakh and the surrounding territories in the circumstances which had prevailed for more than twenty years after the ceasefire agreement. Those circumstances included in particular a continued presence of Armenian and Armenian-backed troops, ceasefire breaches on the line of contact, an overall hostile relationship between Armenia and Azerbaijan and so far no prospect of a political solution. There had accordingly been a continuing interference with the applicants’ right to peaceful enjoyment of their possessions.
As long as access to the property was not possible, the State had a duty to take alternative measures to secure property rights, as was acknowledged by the relevant international standards issued by the United Nations and the Council of Europe. The fact that peace negotiations under the auspices of the OSCE were ongoing – which included issues relating to displaced persons – did not free the Government from their duty to take other measures, especially having regard to the fact that the negotiations had been ongoing for over twenty years. It would therefore be important to establish a property claims mechanism which would be easily accessible and provide procedures operating with flexible evidentiary standards to allow the applicants and others in their situation to have their property rights restored and to obtain compensation for the loss of the enjoyment of their rights. While the Government of Armenia had had to provide assistance to hundreds of thousands of Armenian refugees and internally displaced persons, the protection of that group did not exempt the Government from its obligations towards Azerbaijani citizens as the applicants who had had to flee as a result of the conflict. In conclusion, as concerns the period under consideration, the Government had not justified denying the applicants access to their property without providing them with compensation for that interference. There had accordingly been a continuing violation of the applicants’ rights under Article 1 of Protocol No. 1.
Conclusion: violation (fifteen votes to two).
13216/05 – Legal Summary, [2015] ECHR 647
Bailii
European Convention on Human Rights
Human Rights
Updated: 02 January 2022; Ref: scu.549942
