ECHR Article 1
Jurisdiction of states
Jurisdiction of Azerbaijan as regards a disputed area near Nagorno-Karabakh on the territory of Azerbaijan
Article 8
Article 8-1
Respect for family life
Respect for home
Respect for private life
Impossibility for an Armenian citizen displaced in the context of the Nagorno-Karabakh conflict to gain access to his home and relatives’ graves: violation
Article 13
Effective remedy
Lack of effective remedy in respect of loss of homes or 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
Azerbaijan’s failure to take measures to secure property rights of an Armenian citizen displaced in the context of the Nagorno-Karabakh conflict: violation
Facts – The applicant died after lodging his complaint with the Court. Two of his children pursued the application on his behalf.
The applicant and his family, ethnic Armenians, used to live in the village of Gulistan, in the Shahumyan region of the Azerbaijan Soviet Socialist Republic (‘the Azerbaijan SSR’), where he had a house and a plot of land. According to his submissions, his family was forced to flee from their home 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 SSR. In 1989 the NKAO had a population of approximately 77% ethnic Armenians and 22% ethnic Azeris. The Shahumyan region shared a border with the NKAO and was situated north of it. According to the applicant, prior to the conflict, 82% of the population of Shahumyan were ethnic 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.
Shahumyan, where Mr Sargsyan’s family lived, did not form part of the NKAO, but was later claimed by the ‘NKR’ as part of its territory. In 1991 special-purpose militia units of the Azerbaijan SSR launched an operation in the region with the stated purpose of ‘passport checking’ and disarming local Armenian militants in the region. However, according to various sources, the Azerbaijan SSR militia units used the official purpose as a pretext to expel the Armenian population from a number of villages in the region. In 1992, when the conflict escalated into war, the Shahumyan region came under attack by Azerbaijani forces. The applicant and his family fled Gulistan following heavy bombing of the village. He and his wife subsequently lived as refugees in Yerevan, Armenia.
In support of his claim that he had lived in Gulistan for most of his life until his forced displacement, the applicant submitted a copy of his former Soviet passport and his marriage certificate. He also submitted, in particular, a copy of an official certificate (‘technical passport’), according to which a two-storey house in Gulistan and more than 2,000 square metres of land were registered in his name, photographs of the house, and written statements from former officials of the village council and former neighbours confirming that he had had a house and a plot of land in Gulistan.
Law
(a) Preliminary objections
(i) Exhaustion of legal remedies at domestic level – In view of the Nagorno-Karabakh conflict – having regard to the fact that there were no diplomatic relations between Armenia and Azerbaijan and that borders were closed – there could be considerable practical difficulties in the way of a person from one country in bringing legal proceedings in the other. The Government of Azerbaijan had failed to explain how the legislation on the protection of property would apply to the situation of an Armenian refugee who wished to claim restitution or compensation for the loss of property left behind in the context of the conflict. They had not provided any example of a case in which a person in the applicant’s situation had been successful before the Azerbaijani courts. The Government had thus failed to prove that a remedy capable of providing redress in respect of the applicant’s complaints was available.
Conclusion: preliminary objection dismissed (fifteen votes to two).
(ii) Jurisdiction and responsibility of Azerbaijan – Given that the village of Gulistan was situated on the internationally recognised territory of Azerbaijan – a fact which was not in dispute between the parties – under the Court’s case-law, the presumption applied that Azerbaijan had jurisdiction over the village. It was therefore for the Government to show that exceptional circumstances existed, which would limit their responsibility under Article 1 of the Convention. Gulistan and the Azerbaijani military forces were located on the north bank of a river, while the ‘NKR’ positions were located on the south bank. On the basis of the material before the Court it was not possible to establish whether there had been an Azerbaijani military presence in Gulistan – although there were a number of indications – throughout the period falling within its temporal jurisdiction, namely from April 2002, when Azerbaijan ratified the Convention, until the present. It was significant to note, however, that none of the parties had alleged that the ‘NKR’ had any troops in the village.
The Court was not convinced by the respondent Government’s argument that, since the village was located in a disputed area, surrounded by mines and encircled by opposing military positions, Azerbaijan had only limited responsibility under the Convention. In contrast to other cases in which the Court had found that a State had only limited responsibility over part of its territory due to occupation by another State or the control by a separatist regime, it had not been established that Gulistan was occupied by the armed forces of another State.
Taking into account the need to avoid a vacuum in Convention protection, the Court did not consider that the respondent Government had demonstrated the existence of exceptional circumstances of such a nature as to qualify their responsibility under the Convention. In fact, the situation at stake in the instant case was more akin to the situation in Assanidze v. Georgia (71503/01, 8 April 2004, Information Note 63) in that, from a legal point of view the Government of Azerbaijan had jurisdiction as the territorial state and full responsibility under the Convention, while they might encounter difficulties at a practical level in exercising their authority in the area of Gulistan. Such difficulties would have to be taken into account when it came to assessing the proportionality of the acts or omissions complained of by the applicant.
Conclusion: preliminary objection dismissed (fifteen votes to two).
(b) Merits
Article 1 of Protocol No. 1: 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).
In the instant case, the applicant had submitted a technical passport established in his name and relating to a house and land in Gulistan, including a detailed plan of the house. It was not contested that a technical passport was, as a rule, only issued to the person entitled to the house and thus constituted, in the Court’s view, prima facie evidence that he had held title to the house and the land, which had not convincingly been rebutted by the Government. Moreover, the applicant’s submissions as to how he had obtained the land and permission to build a house were supported by statements from a number of family members and former villagers. While those statements had not been tested in cross-examination, they were rich in detail and demonstrated that the people concerned had lived through the events described. Last but not least, the Court had regard to the circumstances in which the applicant had been compelled to leave when the village had come under military attack. It is hardly astonishing that he had been unable to take complete documentation with him. Accordingly, taking into account the totality of the evidence presented, the Court found that the applicant has sufficiently substantiated his claim that he had a house and a plot of land in Gulistan at the time of his flight in 1992.
In the absence of conclusive evidence that the applicant’s house had been completely destroyed before the entry into force of the Convention in respect of Azerbaijan, the Court proceeded from the assumption that it still existed though in a badly damaged state. In conclusion, there was no factual basis for the Government’s objection ratione temporis.
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 the construction of individual houses. In such cases, 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. Having regard to the autonomous meaning of Article 1 of Protocol No. 1, the applicant’s right to personal property of the house and his ‘right of use’ in respect of the land constituted ‘possessions’ under that provision.
While the applicant’s forced displacement from Gulistan fell outside the Court’s temporal jurisdiction, the Court had to examine whether the respondent Government had breached his rights in the ensuing situation, which continued after the entry into force of the Convention in respect of Azerbaijan.
Currently, more than one thousand individual applications lodged by persons who had been displaced during the conflict were pending before the Court, slightly more than half of them being directed against Armenia and the remainder against Azerbaijan. While the issues raised fell within the Court’s jurisdiction as defined in Article 32 of the Convention, it was the responsibility of the two States involved to find a political settlement of the conflict. Comprehensive solutions to such questions as the return of refugees to their former places of residence, repossession of their property and/or payment of compensation could only be achieved through a peace agreement. Indeed, prior to their accession to the Council of Europe, Armenia and Azerbaijan had given undertakings to resolve the Nagorno-Karabakh conflict through peaceful means. The Court could not but note that compliance with the above accession commitment was still outstanding.
The instant case was the first in which the Court had had to rule on the merits of a complaint against a State which had lost control over part of its territory as a result of war and occupation, but which at the same time was alleged to be responsible for refusing a displaced person access to property in an area remaining under its control.
The Court examined the applicant’s complaint with a view to establishing whether the respondent Government had complied with their positive obligations under Article 1 of Protocol No. 1 and whether a fair balance between the demands of the public interest and the applicant’s fundamental right of property had been struck. The applicant’s complaint raised two issues, firstly whether the respondent Government were under an obligation to grant him access to his house and land in Gulistan, and secondly whether they were under a duty to take any other measures to protect the applicant’s property right and/or to compensate him for the loss of its use.
International humanitarian law did not appear to provide a conclusive answer to the question whether the Government were justified in refusing the applicant access to Gulistan. Having regard to the fact that Gulistan was situated in an area of military activity and at least the area around it was mined, the Court accepted the Government’s argument that refusing civilians, including the applicant, access to the village was justified by safety considerations. However, as long as access to the property was not possible, the State had a duty to take alternative measures in order to secure property rights – and thus to strike a fair balance between the competing public and individual interests concerned – as was acknowledged by the relevant international standards issued by the United Nations (Pinheiro Principles) and the Council of Europe. The Court would underline that the obligation to take alternative measures did not depend on whether or not the State could be held responsible for the displacement itself.
The fact that peace negotiations under the auspices of the OSCE were ongoing – which included issues relating to displaced persons – did not free the respondent 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 applicant and others in his situation to have their property rights restored and to obtain compensation for the loss of the enjoyment of their rights. While the Government of Azerbaijan had had to provide assistance to hundreds of thousands of internally displaced persons – namely those Azerbaijanis who had had to flee from Armenia and from Nagorno-Karabakh and the surrounding districts – the protection of that group did not exempt the Government entirely from its obligations towards Armenians such as the applicant who had had to flee as a result of the conflict. In that connection, the Court referred to the principle of non-discrimination laid down in Article 3 of the above-mentioned Pinheiro Principles.
In conclusion, the impossibility for the applicant to have access to his property in Gulistan without the Government taking any alternative measures in order to restore his property rights or to provide him with compensation had placed an excessive burden on him. There had accordingly been a continuing violation of his rights under Article 1 of Protocol No. 1.
Conclusion: violation (fifteen votes to two).
Article 8 of the Convention: The applicant’s complaint encompassed two aspects: lack of access to his home in Gulistan and lack of access to the graves of his relatives. Having regard to the evidence submitted by Mr Sargsyan (namely a copy of his former Soviet passport and his marriage certificate, and a number of witness statements), the Court found it established that he had lived in Gulistan for the major part of his life until being forced to leave; he thus had had a ‘home’ there. His prolonged absence could not be considered to have broken the continuous link with his home. Furthermore, as the applicant must have developed most of his social ties in Gulistan, his inability to return to the village also affected his ‘private life’. Finally, the applicant’s cultural and religious attachment with his late relatives’ graves in Gulistan might also fall within the notion of ‘private and family life’.
The Court referred to its findings under Article 1 of Protocol No. 1 and held that the same considerations applied in respect of the applicant’s complaint under Article 8. The impossibility for him to have access to his home and to his relatives’ graves in Gulistan without the Government taking any measures in order to address his rights or to provide him at least with compensation, had placed a disproportionate burden on him. There had accordingly been a continuing violation of Article 8 of the Convention.
Conclusion: violation (fifteen votes to two).
Article 13 of the Convention: The respondent Government had failed to prove that a remedy capable of providing redress to the applicant in respect of his Convention complaints and offering reasonable prospects of success was available. Moreover, the Court’s findings under Article 1 of Protocol No. 1 and Article 8 of the Convention related to the State’s failure to create a mechanism which would allow him to have his rights in respect of property and home restored and to obtain compensation for the losses suffered. There was therefore a close link between the violations found under Article 1 of Protocol No. 1 and Article 8 on the one hand and the requirements of Article 13 on the other. There had accordingly been a continuing breach of Article 13 of the Convention.
Conclusion: violation (fifteen votes to two).
Article 41: reserved.
40167/06 – Grand Chamber Judgment, [2015] ECHR 588, 40167/06 – Legal Summary, [2015] ECHR 652
Bailii, Bailii
European Convention on Human Rights
Human Rights, Family, Land
Updated: 01 January 2022; Ref: scu.549227