Information Note on the Court’s case-law 213

December 2017

Chiragov and Others v. Armenia (just satisfaction) [GC] - 13216/05

Judgment 12.12.2017 [GC]

Article 41

Just satisfaction

Aggregate award for pecuniary and non-pecuniary damage for individuals displaced in the context of the conflict over Nagorno-Karabakh

[This summary also covers the judgment in the case of Sargsyan v. Azerbaijan [GC], 40167/06, 12 Dece mber 2017]

Facts – In the case of Sargsyan v. Azerbaijan the applicant and his family were ethnic Armenians who used to live in the village of Gulistan, in the present-day Goranboy region of Azerbaijan. The applicants in the case of Chiragov and Others v. Armenia were Azerbaijani Kurds who use to live in the district of Lachin, in Azerbaijan. The applicants had all been forced to flee their homes in 1992 during the Armenian-Azerbaijani conflict over Nagorno-Karabakh.

In judgments delivered on 16 June 2015 (“the principal judgments”), the Grand Chamber found continuing violations of Articles 8 and Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention. The question of the application of Article 41 of the Convention was reserved in bot h cases.

Law – Article 41

(a) Introductory remarks : These were exceptional cases, relating to an ongoing conflict situation. The active military phase in the Nagorno-Karabakh conflict had taken place in 1992-94 but, despite a ceasefire agreement concluded in May 1994 and negotiations conducted in the framework of the OSCE Minsk Group, no peace agreement had been reached. Twenty-three years later, breaches of the ceasefire agreement continued to occur. Violence had recently escalated along the Line of Conta ct, most notably during the military clashes in early April 2016.

The events which had led the applicants to flee their property and homes occurred in 1992. The respondent States had ratified the Convention ten years later, Azerbaijan on 15 April 2002 and Armenia on 26 April 2002. While having no jurisdiction ratione temporis over events pre-dating ratification, the Court had concluded in its principal judgments that the applicants still had valid proprietary rights and, from the date of entry into force of the Convention, found continuing violations of the applicants’ rights.

The Court was thus dealing with a continuing situation which had its roots in the unresolved conflict over Nagorno-Karabakh and the surrounding territories and still affected a large number of individuals. More than one thousand individual applications lod ged 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. The applicants in those cases represented just a small portion of the persons, estimated to exceed one million, who had had to flee during the conflict and had since been unable to return to their properties and homes or to receive any compensation for the loss of their enjoyment.

Armenia and Azerbaijan had given undertakings prior to their accession to the Council of Europe committing themselves to the peaceful settlement of the conflict. Some fifteen years had passed since the ratification of the Convention by both States without a political solution in sight. It was the responsibility of the two States involved to find such a solution.

The Court was not a court of first instance. It did not have the capacity, nor was it appropriate to its function as an international court, to ad judicate on large numbers of cases which required the finding of specific facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions. It was precisely t he Governments’ failure to comply with their accession commitments as well as with their obligations under the Convention which had obliged the Court in the present cases to act as a court of first instance, establishing relevant facts some of which dated back many years, evaluating evidence in respect of property claims and finally assessing monetary compensation.

Without prejudice to any compensation to be awarded as just satisfaction in the present cases, the effective and constructive execution of the principal judgment called for the creation of general measures at national level. Guidance as to appropriate measures had been given in the principal judgments.

(b) General principles on just satisfaction : If the nature of the breach allowed for restitut io in integrum , it was for the respondent State to effect it, the Court having neither the power nor the practical possibility of doing so itself. If, on the other hand, national law did not allow – or allowed only partial – reparation to be made, Article 41 empowered the Court to afford the injured party such satisfaction as appeared to it to be appropriate. Nevertheless, some situations – especially those involving long-standing conflicts – were not, in reality, amenable to full reparation.

As regards cla ims for pecuniary loss, there had to be a clear causal connection between the damage claimed by the applicant and the violation of the Convention. As regards losses related to real property, where no deprivation of property had taken place but the applican t had been denied access and therefore the possibility to use and enjoy the property, the Court’s general approach was to assess the loss suffered with reference to the annual ground rent, calculated as a percentage of the market value of the property, tha t could have been earned during the relevant period.

A precise calculation of the sums necessary to make reparation in respect of the pecuniary losses suffered by the applicant might be prevented by the inherently uncertain character of the damage flowing from the violation. An award may still be made notwithstanding the large number of imponderables involved in the assessment of future losses, though the greater the lapse of time involved, the more uncertain the link became between the breach and the dama ge. The question to be decided in such cases was the level of just satisfaction, in respect of both past and future pecuniary losses, that it was necessary to award to the applicant, the matter to be determined by the Court at its discretion, having regard to what was equitable.

Furthermore the Court reiterated that there was no express provision for non-pecuniary or moral damage. Situations where the applicant had suffered evident trauma, whether physical or psychological, pain and suffering, distress, an xiety, frustration, feelings of injustice or humiliation, prolonged uncertainty, disruption to life, or real loss of opportunity could be distinguished from those situations where the public vindication of the wrong suffered by the applicant, in a judgment binding on the Contracting State, was an appropriate form of redress in itself. In some situations, where a law, procedure or practice had been found to fall short of Convention standards, that was enough to put matters right. In other situations, however , the impact of the violation might be regarded as being of a nature and degree as to have impinged so significantly on the moral well-being of the applicant as to require something further. Such elements did not lend themselves to a process of calculation or precise quantification. Nor was it the Court’s role to function akin to a domestic tort mechanism in apportioning fault and compensatory damages between civil parties. Its guiding principle was equity, which above all involved flexibility and an object ive consideration of what was just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach had occurred. Its non-pecuniary awards served to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right and to reflect in the broadest of terms the severity of the damage.

Finally, depending on the specific circumstances of the case, it might be appropriate to make an ag gregate award for pecuniary and non-pecuniary damage.

(c) Award of damages in Sargsyan

(i) Pecuniary damage : The applicant had initially requested restitution of his property, including the right to return to his property and home in Gulistan, but had not upheld that claim following the principal judgment, noting the impossibility of a return to the village on account of the prevailing security situation. Thus, an award of compensation was the appropriate just satisfaction.

It was the finding that the appli cant still had valid property rights in respect of his house and land in Gulistan that had brought the case within the Court’s competence ratione temporis from 15 April 2002. It followed, firstly, that a period of almost ten years during which the continui ng situation complained of existed, fell outside the Court’s temporal jurisdiction and that any damage suffered by the applicant before 15 April 2002 was not directly related to the violations found and therefore could not be compensated under Article 41. Secondly, as the applicant had not been deprived of his property rights, compensation could not be awarded for the loss of his house and land as such, but only for the loss of use of his property.

The damage to the applicant’s house, furniture, fruit trees and the loss of livestock had occurred prior to the entry into force of the Convention and therefore no awards could be made under those heads. Furthermore, no award could be made for compensation for loss of income from salaries and pensions for the peri od pre-dating 15 April 2002. As regards the period after the entry into force of the Convention, there was no causal link between the violations found in the principal judgment and the damage alleged. The losses claimed were not directly related to the imp ossibility for the applicant to have his property rights restored or to obtain compensation for the loss of their enjoyment, but were rather linked to his displacement from Gulistan in 1992 and to the overall consequences of the conflict.

An award in resp ect of pecuniary damage could therefore only be made under two heads, namely the loss of income from the applicant’s land and additional rental and living expenses. The assessment of pecuniary damage under those heads was burdened with many uncertainties a nd difficulties. Some of those difficulties were linked to the fact that the underlying conflict was still unresolved and to the particular situation of Gulistan. Since the entry into force of the Convention Gulistan had been a deserted village in which mo st buildings have been dilapidated, situated between the opposing forces in the conflict. In those circumstances it was not possible to obtain any valid data for the loss of use of the applicant’s property. It did not appear appropriate either to assess th e loss of use with reference to the annual ground rent, calculated as a percentage of the market value of the property that could have been earned in the period after the entry into force of the Convention.

Another difficulty, closely linked to the first, concerned the lack or inaccessibility of documentation. The main document submitted by the applicant in respect of his house and land in Gulistan was the technical passport of the house established in May 1991, still at the time of the Soviet Union. The te chnical passport contained no valuation in respect of the land. That could partly be explained by the fact that, at the time when the plot of land was allocated to the applicant, there was no private ownership of land under the Soviet legal system it being given to him instead with a “right of use”. Concerning the period falling within the Court’s competence ratione temporis , there was no documentation relating to the value of the property or any income to be derived from it.

While the Court accepted that t he applicant, who had lived in his house in Gulistan and derived part of his income from farming his land, must have incurred additional living expenses in Armenia, the uncertainty as to the assessment of the loss of income from the applicant’s land also p revented any precise calculation of the difference in living expenses. The assessment was further complicated by the fact that it involved comparing economic conditions in two different countries which must have evolved considerably over time. Having regar d to all those elements, the pecuniary damage sustained by the applicant did not lend itself to precise assessment.

(ii) Non-pecuniary damage : The applicant had to have sustained non-pecuniary damage as a result of the protracted, unresolved situation, th e insecurity about the fate of his house and other property and the graves of his relatives in Gulistan, and the ensuing emotional suffering and distress. The finding of a violation did not constitute in itself sufficient just satisfaction for the non-pecu niary damage suffered. So far, no property claims mechanism or other measures had been put in place by the Government which could benefit persons in the applicant’s situation.

(d) Award of Damages in Chiragov and Others

(i) Pecuniary damage: There was no r ealistic possibility for the applicants to return home and no such possibility had existed during the period under scrutiny. Thus, an award of compensation was the appropriate just satisfaction. Damage suffered by the applicants before 26 April 2002 was no t directly related to the violations and therefore could not be compensated under Article 41. As the applicants had not been deprived of their property, compensation could not be given for the loss of land and houses as such, but only for the loss related to the applicants’ inability to use and enjoy the property.

It was unclear whether the applicants’ houses had been destroyed or were still partly or wholly intact. Having regard to all the imponderables, the submissions in the case did not sufficiently sho w that the applicants had houses which, in April 2002, still existed or, if so, existed in such a condition that they could be taken into account for the purposes of an award of compensation. It was very difficult to determine the value of the applicants’ land. That was compounded by the fact that, at the start of the period that could be considered by the Court, the applicants’ land had been located on occupied and largely ravaged territory for ten years and a further fifteen years, in similar circumstance s, had passed since. Consequently, while pecuniary damages might be awarded in respect of loss of income from the applicants’ land, including possible rent and proceeds from farming and stockbreeding, the Court’s general approach to calculating loss did no t appear appropriate or useful in the circumstances of the present case.

No evidence, except for statements of individuals, had been submitted in support of claims for the loss of household items, cars, fruit trees and bushes, and livestock. More important ly, all of those belongings must reasonably be presumed to have been destroyed or to have vanished during the military attack on the district of Lachin or the following ten-year period until April 2002. If any items were still in existence at the latter da te, they would at least have sustained such damage during years of decay that they were unlikely to have been in a usable state. In respect of those items, there was no causal connection between the damages claimed and the continuing violations found in th e principal judgment. The loss of salaries and other income was not related to the lack of access to the applicants’ property and homes but rather to their displacement from Lachin in 1992. It was not possible to speculate as to what employment or income t he applicants could have had in Lachin in 2002, ten years after their flight.

An award of in respect of pecuniary damage could therefore only be made under two heads, namely the loss of income from the applicants’ land in Lachin and their increased living expenses in Baku. However, the assessment of the damage sustained was dependent on a large number of imponderables, partly because the claims were generally based on limited documentation and partly because no reliable method or data for evaluating the va lue of the land had been presented. Consequently, the pecuniary damage sustained by the applicants did not lend itself to precise calculation.

(ii) Non-pecuniary damage : The circumstances of the case must have caused the applicants emotional suffering and distress due to the protracted and unresolved situation which had separated them from their property and homes in the district of Lachin and constrained them to a life as internally displaced persons in Baku in presumably poorer living conditions. The fin ding of a violation did not constitute in itself sufficient just satisfaction for the non-pecuniary damage suffered.

(e) Overall conclusion : The applicants in both cases were entitled to compensation for certain pecuniary losses and for non-pecuniary dama ge, which were closely connected. The damage sustained did not lend itself to precise calculation and further difficulties in the assessment derived from the passage of time. The level of just satisfaction to be awarded had to be determined at the Court’s discretion, having regard to what it found equitable.

The Court had regard to the respondent State’s primary duty to make reparation for the consequences of a breach of the Convention and underlining once more the responsibility of the two States concerned to find a plausible resolution to the Nagorno-Karabakh conflict. Pending a solution on the political level, it considered it appropriate to award an aggregate sum for pecuniary and non-pecuniary damage to each of the applicants EUR 5,000 covering all head s of damage, plus any tax that may be chargeable on that amount.

Conclusion : EUR 5,000 to each of the applicants in respect of pecuniary and non-pecuniary damage.

( Sargsyan v. Azerbaijan [GC], 40167/06, 16 June 2015, Information Note 186 ; and Chiragov and Others v. Armenia [GC], 13216/05, 16 June 2015, Information Note 186 )

© Council of Europe/European Court of Human Rights This summary by th e Registry does not bind the Court.

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