Information Note on the Court’s case-law 186

June 2015

Chiragov and Others v. Armenia [GC] - 13216/05

Judgment 16.6.2015 [GC]

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 ov er 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”). Ther e 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 7 7% 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 de clared its independence from the Soviet Union – the Regional Council of the NKAO announced the establishment of the “Nagorno-Karabakh Republic” (the “NKR”), consisting of the territory of the NKAO and the Shahumyan district of Azerbaijan. Following a refer endum 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. Thereafter, 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 inter nally-displaced people and refugees on both sides. In May 1994 the parties to the conflict signed a ceasefire 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 org anisation. 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-K arabakh 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 volun teer 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 b ecause 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 those of their children, and/or marriage certif icates; 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 re sult of armed conflict or in any other way relate 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-Karab akh 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 ter ritories, 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 s tatus – 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 homes 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 th e 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 an d 1990 and contained the applicants’ names. They also included references to the respective land allocation decisions. In the circumstances, they provided prima facie evidence of title to property equal to that which 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. The documents concerning the applicants’ identities and residence also lent support to their property claims. More over, 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. Acc ordingly, 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 had been in possession of houses and land at the time of their fligh t.

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 such event, 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 con clusion, at the time they had had to leave the district of Lachin, the applicants had held rights to land and houses which constituted “possessions” within the meaning of Article 1 of Protocol No. 1. There was no indication that those rights had been extin guished 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 tw o).

(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 – would have been able, without substantial military support from Armenia, to set up a defence force in early 1992 capable – against Azerbaijan and its population of seven million – of establishing control of the former NKAO and of conquering before the end of 1993 the whole or major parts of seven surrounding Azerbaijani districts. In any event, Armenia’s military involvement 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 current and former members of the Armenian Government, demonstra ted 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 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 and cou ld be construed as a form of admission. Armenia’s military support had continued to be decisive for control over the territories in question. Furthermore, it was evident from the facts established in the case that Armenia had given the “NKR” substantial po litical 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 vi rtually 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 territo ries.

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 the y 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 they had left behind. Moreover, in the Court’s view, it was not realistic in practice for Azerbaijanis to return to Nagorno-Karabakh and the surroun ding 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 co ntact, 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 acc ess 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 negot iations 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 prote ction of that group did not exempt the Government from its obligations towards Azerbaijani citizens such 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 ju stified denying the applicants access to their property without compensation. There had accordingly been a continuing violation of the applicants’ rights under Article 1 of Protocol No. 1.

Conclusion : violation (fifteen votes to two).

Article 8 of the Conv ention: All the applicants were born in the district of Lachin. Until their flight in May 1992 they had lived and worked there for all or major parts of their lives. Almost all of them had married and had children in the district. Moreover, they had earned their livelihood there and their ancestors had lived there. They had built and owned houses there in which they lived. It was thus clear that the applicants had long-established lives and homes in the district. They had not voluntarily taken up residence anywhere else, but lived as internally displaced persons in Baku and elsewhere out of necessity. In the circumstances of the case, their forced displacement and involuntary absence from the district of Lachin could not be considered to have broken their li nks with the district, notwithstanding the length of time that had passed since their flight. For the same reasons as those which led to its findings under Article 1 of Protocol No. 1, the Court found that the denial of access to the applicants’ homes cons tituted a continuing unjustified interference with their right to respect for their private and family lives and their homes.

Conclusion : violation (fifteen votes to two).

Article 13 of the Convention: The Armenian Government had failed to prove that a rem edy capable of providing redress to the applicants in respect of their Convention complaints and offering reasonable prospects of success was available.

Conclusion : violation (fourteen votes to three).

Article 41: reserved.

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

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