FIFTH SECTION

DECISION

Application no. 74508/16 Garik OHANYAN and Others against Azerbaijan

The European Court of Human Rights (Fifth Section), sitting on 12 September 2023 as a Chamber composed of:

Georges Ravarani , President , Carlo Ranzoni, Stéphanie Mourou-Vikström, Lətif Hüseynov, Erik Wennerström, Mattias Guyomar, Kateřina Šimáčková , judges , and Victor Soloveytchik, Section Registrar,

Having regard to:

the above application lodged on 1 October 2016,

the observations submitted by the respondent Government and the observations in reply submitted by the applicants, and

the comments submitted by the Armenian Government,

Having deliberated, decides as follows:

THE FACTS

1. The applicants are a married couple, Mr Garik Ohanyan and Ms. Yeraz Ohanyan, their children Kamo, Kristine, Tamara, Syuzanna and Ruzanna and the first applicant’s mother, Ms Amalya Ohanyan. They were born in 1978, 1981, 1999, 2005, 2009, 2010, 2013 and 1954, respectively, and used to live in Talish (Taliş). They were represented before the Court by Ms K. Gevorkyan and Ms L. Alaverdyan, lawyers based in Yerevan.

2. The Azerbaijani Government were represented by their Agent, Mr Ç. Əsgərov.

3. The Armenian Government, third-party intervener, were represented by their Agent, Mr Y. Kirakosyan.

4. At the time of the demise of the Soviet Union, the conflict over the status of the region of Nagorno-Karabakh arose. In September 1991 the establishment of the “Republic of Nagorno-Karabakh” (the “NKR”; in 2017 renamed the “Republic of Artsakh”) was announced, the independence of which has not been recognised by any State or international organisation. In early 1992 the conflict gradually escalated into a full-scale war which ended with the signing, on 5 May 1994, of a ceasefire agreement (the Bishkek Protocol) by Armenia, Azerbaijan and the “NKR”. Following the war, no political settlement of the conflict has been reached; the situation has remained hostile and tense and there have been recurring breaches of the ceasefire agreement (see further Chiragov v. Armenia [GC], no. 13216/05, §§ 12-31, ECHR 2015; and Sargsyan v. Azerbaijan [GC], no. 40167/06, §§ 14-28, ECHR 2015). During the night between 1 and 2 April 2016 heavy military clashes started close to the line of contact between the “NKR” and Azerbaijan (sometimes referred to as the “Four-Day War”). The clashes lasted until 5 April, but further clashes took place later that month. Estimates of casualties vary considerably; official sources indicated at least 100 dead on either side of the conflict. The great majority of the casualties were soldiers but also several civilians died. Many residents in the targeted towns and villages had to leave their homes for certain periods of time. Furthermore, the clashes led to substantial property and infrastructure damage.

5. On 27 September 2020 another war broke out which lasted for 44 days until 10 November 2020 when a ceasefire agreement, signed the day before, entered into force. This war substantially changed the territorial control that had existed since the 1992-94 war.

6. The facts of the case are disputed. They may be summarised as follows.

(a) The situation in Talish

7. On 2 April 2016, at around 2.30 a.m., the Azerbaijani armed forces began shelling “NKR” towns and villages located along the line of contact between “NKR” and Azerbaijan. The village of Talish, situated 3 ‑ 4 kilometres away from that border, was hit first, by artillery and rocket launchers as well as aircraft. The bombardment lasted for several hours. Almost all residents either left the village themselves or were evacuated to other parts of the “NKR”. Many houses, private homes as well as public buildings, and infrastructure were heavily damaged and some villagers were injured and a few others were killed.

8. On 2 and 4 April 2016 the Prosecutor-General of the “NKR” opened criminal investigations of the shelling and its human and property consequences. Within that framework, site examinations were conducted in Talish and other affected areas of the “NKR”. These examinations established that considerable damage had been done to many public and private buildings in Talish, including the village school and kindergarten, the village administration building, the events hall, the church and chapel as well as the water reservoir. The number of killed livestock reached several hundreds.

9. The shelling of Talish continued sporadically until 5 April 2016, when a ceasefire was agreed upon. Nevertheless, even after the ceasefire it was unsafe for the villagers to return to their dwellings, since several strategic heights around Talish had been captured by the Azerbaijani army.

(b) The circumstances of the applicants

10. On 2 April 2016, at around 3.30 a.m., the applicants woke up at their home from the sounds of explosion. A projectile fell in their yard and exploded in front of the entrance door, damaging both the house and the adjacent barn. Garik Ohanyan immediately moved the children out of the house. His son Kamo got hit on his left leg. The whole family went to their neighbours’ house, after which S, a family relative, took them to Karvachar (Kalbajar) and then transferred the son to a hospital where he received medical treatment. The applicants stayed at the house of S.

11. On 6 April 2016 an investigator of the investigative department of the “NKR” police conducted a site examination at the applicants’ house and land and the adjacent territory. According to the protocol of the examination, all windows of the house had been broken and the roof, the doors and the interior of the house had been damaged. The report further noted that several holes were found around the house with scattered metal fragments that resembled parts of a shell. Garik Ohanyan noted during the site examination that the destruction and damage established had resulted from the shelling of 2 April. It also transpires from the report that Amalya Ohanyan had been injured and received first aid at a hospital in Karvachar and that the family’s youngest daughter, Ruzanna, had received an injury to the head, although no special medical assistance had been sought for her.

12. On 10 April 2016 Yeraz and Amalya Ohanyan and the son Kamo were interviewed by the “NKR” police. Yeraz and Amalya Ohanyan mentioned that, when an explosive fell in their yard, the windows of the house broke and some other parts of the property were damaged. They further stated that, although Garik Ohanyan managed to bring back some of the family’s livestock on 4 April, the remainder of their property was damaged and lost. They both estimated their material damage at 3,000,000 Armenian drams (AMD; approximately 7,300 euros (EUR) at the current exchange rate), without including the lost livestock. Kamo testified that he had seen shells flying over their house, one of which dropped and exploded in front of their entrance door causing the injury to his left leg. When the family were leaving Talish, Kamo had seen the village being shelled. All of the interviewees noted that the whole family had been scared by the bombardment.

13. On 14 April 2016 another police investigator conducted a site examination of the barn next to the applicants’ house. According to the protocol, substantial damage had been inflicted on the barn. The head of Talish village confirmed during the site examination that the damage had resulted from the bombardment.

14. An examination of Kamo’s trousers performed by the forensic department of the “NKR” police and presented in a report of 19 April 2016 revealed that the torn parts had been caused by shell fragments from the explosion. Traces of an explosive matter and a stabiliser were found. A report on a forensic medical examination of the son’s injury, issued on 27 April 2016, specified that a fragment of an explosive had wounded his left shin, causing slight harm to his health.

15. A more detailed examination of the applicants’ house was made by experts of the “NKR” authority of forensic examinations. They noted, in a report of 23 May 2016, that the shelling of 2-5 April had damaged the roof, in particular its sides, covering and wooden construction. Furthermore, the walls and the drainpipes, the coating and painting of the ceiling as well as the doors and windows had also been damaged. In monetary terms, the damage was estimated at AMD 5,329,000 (approximately EUR 13,000) and the total cost, including repair work and the cost of alternative housing, at AMD 9,311,279 (EUR 23,000).

16. The military clashes in question were initiated by the Armenian armed forces which subjected the Azerbaijani towns and villages in the districts of Goranboy, Tartar, Agdam, Khojavend and Fuzuli to heavy shelling which led to significant casualties among the civilian population and destruction of property. Six civilians were killed and 33 wounded. Hundreds of private houses were damaged or completely destroyed. Extensive damage or destruction was done also to public property and infrastructure.

COMPLAINTS

17. The applicants complained that, as a result of an indiscriminate military attack by the Azerbaijani armed forces, there had been a real and imminent threat to their lives and that, on account of their forced displacement from Talish and inability to use their home, their right to respect for their family life and home had been infringed. They further submitted that their property had been damaged during the shelling, thereby depriving them of the peaceful enjoyment of their property. They invoked Articles 2 and 8 of the Convention and Article 1 of Protocol No. 1 to the Convention.

Moreover, under Articles 13 and 14 of the Convention in conjunction with the other provisions invoked, the applicants maintained that there was no effective remedy in Azerbaijan for their complaints and alleged that the military attacks had been directed against Armenians due to their ethnic and national origin.

THE LAW

18. Referring to the applicants’ statement in their observations that “their country of citizenship is ‘the Nagorno-Karabakh Republic’ or ‘the Republic of Artsakh’”, the Azerbaijani Government maintained that they had failed to comply with the requirements of Rule 47 of the Rules of Court or that the application was abusive and should be rejected under Article 35 §§ 3 (a) and 4 of the Convention, as there is no state or other administrative or territorial entity called “the Nagorno-Karabakh Republic”. They also alleged that the property certificate presented by the applicants as proof of ownership indicated the surname of the owners as Ohanesyan and not Ohanyan. They argued that, also in this respect, the applicants had provided the Court with misleading information which constituted another abuse of the right of application.

19. The Government also submitted that the applicants had failed to exhaust domestic remedies, as they had made no attempt, not even through diplomatic channels, to address the courts or investigating authorities of Azerbaijan to exercise their right to lodge complaints concerning the alleged violations of the Convention.

20. The Government further maintained that the village of Taliş is situated in the Tartar district of Azerbaijan and that, therefore, no action by the Azerbaijani armed forces on this territory could be regarded as extraterritorial. There was accordingly a presumption of territorial jurisdiction by Azerbaijan. However, this and significant other parts of Azerbaijan’s sovereign territory were occupied by forces for which Armenia was responsible under international law, including the Convention. As a consequence of the stationing of armed forces on either side of the line of contact and the extensive use of land mines, the village of Taliş was outside the control of Azerbaijan. The Government referred to the case of Chiragov and Others (cited above) in which the Court had found that Armenia exercised effective control over the Nagorno-Karabakh region and other occupied territories. They contended therefore that the matters complained of by the applicants did not fall within the jurisdiction of Azerbaijan under Article 1 of the Convention. As the Armenian armed forces had subjected towns and villages in Azerbaijan to heavy shelling and as Taliş was situated on territory occupied by Armenia, the Government also submitted that the shellfire discharged by Azerbaijan had constituted an act of legitimate self-defence under international law. Moreover, the actions undertaken had only targeted military objects and had been carefully governed by the core principles of the law of armed conflict concerning distinction, military necessity, unnecessary suffering and proportionality. The damage inflicted, including the alleged damage to the applicants’ house, should be regarded as legitimate collateral damage which was not excessive. In this connection, the Government also contended that Armenian military units had been located inside and just outside Taliş. They further pointed out that, due to the factual circumstances, Azerbaijani authorities had not had any opportunity to investigate the allegations made by the applicants.

21. Furthermore, the Government contended that the application was manifestly ill-founded for the following reasons. In regard to the complaints under Article 1 of Protocol No. 1, they stated that the applicants had not substantiated that they owned the property in question or that it had been damaged due to shelling by the Azerbaijani armed forces. In addition to the Government’s above-mentioned allegation that the property certificate contained incorrect names, they argued that the various documents submitted by the applicants should be dismissed as they had been issued by authorities of the “NKR” which was a non-existent entity. Furthermore, reiterating that Taliş formed part of the territory of Azerbaijan, the Government stated that the applicants – assuming that they are Armenian nationals and thus foreigners – were prohibited from acquiring land in Azerbaijan. Under Articles 2 and 8 of the Convention, the Government submitted that the applicants had failed to provide convincing prima facie evidence that they had been exposed to an immediate threat to their lives or that they had been displaced from Taliş and were unable to use their house.

22. The applicants maintained the submissions made concerning their personal circumstances in the original application, stating that “they are of Armenian origin nationality” and that “their country of citizenship is the Nagorno-Karabakh Republic or the Republic of Artsakh”. Moreover, all the documents submitted to the Court, in particular the property ownership certificate, had been issued with their correct surname, Ohanyan.

23. Referring to the Court’s conclusions in Sargsyan (cited above, §§ 115 ‑ 120) and Saribekyan and Balyan v. Azerbaijan (no. 35746/11, §§ 45 ‑ 48, 30 January 2020), the applicants maintained that there was no effective remedy available for them in Azerbaijan. They submitted that the respondent Government had failed to provide any example of a domestic case or remedy which would show that individuals in their situation were able to seek redress before the Azerbaijani authorities and pointed to the recurring refusals of those authorities in earlier cases to respond to requests from the Armenian Prosecutor-General for legal assistance under the Commonwealth of Independent States (CIS) Convention of 22 January 1993 on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases.

24. In the applicants’ view, the facts about which they complained fell under the extraterritorial jurisdiction of Azerbaijan under Article 1 of the Convention. They argued that the Court’s conclusion in Chiragov and Others (cited above) that the Nagorno-Karabakh region was under the effective control of Armenia did not affect the issue of jurisdiction in the present case. Instead, the applicants referred to the Court’s case-law in claiming that Azerbaijan had jurisdiction according to the “cause-and-effect” notion of jurisdiction by virtue of the fact that the military actions of Azerbaijan had produced effects – massive human rights violations – outside its territory. The key factors was that the applicants had suffered such violations as a result of the missiles fired by the Azerbaijani armed forces. Moreover, the applicants refuted the respondent Government’s contentions that Armenian military units had been located in residential areas, that the actions undertaken by the Azerbaijani armed forces had only targeted military objects and that the damage inflicted on the applicants should be considered as legitimate collateral damage. Instead, they claimed that the scale of the attack, the types of weaponry used and the amount of destruction inflicted, including extensive damage to private and public property, showed that the intended target was the civilian population, with the aim to spread fear and to force people to leave their places of residence.

25. Furthermore, the applicants contended that their lives had been under a real and imminent threat due to the military attack on Talish. Specifically, the whole village had been subjected to an indiscriminate attack with heavy weapons. Their house had been seriously damaged and two of the applicants had been injured. As a consequence, they had been forced to flee their home and had not been able to return for several months due to fear that the bombardment and shelling of Talish could resume at any time and because their house and buildings of vital public importance had been damaged or destroyed, making it impossible to live in the village.

26. The Armenian Government fully shared the applicant’s position on the admissibility and merits of the application. They also submitted that there were no inconsistencies in the application and that the respondent Government’s allegations in this respect were groundless.

27. The Court notes at the outset that the case raises an issue under Article 1 of the Convention concerning the respondent State’s jurisdiction in regard to the events of the armed conflict that form the basis of the applicants’ complaints. This provision reads as follows:

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”

28. Jurisdiction under Article 1 is a threshold criterion. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention. While a State’s jurisdictional competence under Article 1 is primarily territorial, the Court has recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries. In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extraterritorially must be determined with reference to the particular facts (see, for instance, Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, § 103-105, 19 October 2012, and Chiragov and Others v. Armenia , cited above, § 168, with further references).

29. The two main criteria established by the Court in regard to extraterritorial jurisdiction are that of “effective control” by the State over an area (spatial concept of jurisdiction) and that of “State agent authority and control” over individuals (personal concept of jurisdiction) (see, among many other authorities, Al ‑ Skeini and Others v. the United Kingdom [GC], no. 55721/07, §§ 133-140, ECHR 2011; Georgia v. Russia (II) [GC], no. 38263/08, §§ 113 ‑ 144, 21 January 2021; and Ukraine and the Netherlands v. Russia (dec.) [GC], nos. 8019/16, 43800/14 and 28525/20, §§ 556-558, 30 November 2022).

30. The village in which the events of the present case took place is situated on the internationally recognised territory of Azerbaijan. Jurisdiction within the meaning of Article 1 of the Convention is presumed to be exercised throughout a Contracting State’s territory (see, for instance, Sargsyan v. Azerbaijan , cited above, §§ 126-129).

31. However, the relevant area had been outside the control of Azerbaijan for many years following the first Nagorno-Karabakh war in 1992 ‑ 1994 (see paragraph 4 above) and that situation persisted at the time of the events of the present case. In the case of Chiragov and Others (cited above, §§ 169 ‑ 186) the Court found it established that, from the early days of the Nagorno-Karabakh conflict, Armenia had had a significant and decisive influence over the “NKR”, that the two entities were highly integrated in virtually all important matters and that this situation persisted. In other words, the “NKR” and its administration survived by virtue of the military, political, financial and other support given to it by Armenia which, consequently, exercised effective control over Nagorno-Karabakh and the surrounding territories. This conclusion was later reiterated in Muradyan v. Armenia (no. 11275/07, § 126, 24 November 2016).

32. In the present case, the alleged violations of the Convention by Azerbaijan were committed during the “Four-Day War”, that is, the military clashes that occurred close to the line of contact between Azerbaijan and the “NKR” from the night between 1 and 2 April 2016 until 5 April 2016. It must be determined whether the consequences of the international armed conflict at issue, in particular the consequences allegedly suffered by the applicants on territory beyond the line of contact between Azerbaijan and the “NKR”, could be considered to come within the jurisdiction of Azerbaijan.

33. As noted by the Court in Georgia v. Russia (II) (cited above, § 126), in the event of military operations – including, for example, armed attacks, bombing or shelling – carried out during an international armed conflict one cannot generally speak of “effective control” over an area. The very reality of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos means that there is no control over an area. However, there are certain exceptions and the Georgia v. Russia (II) judgment cannot, therefore, be seen as authority for excluding entirely from a State’s Article 1 jurisdiction a specific temporal phase of an international armed conflict (see Ukraine and the Netherlands v. Russia (dec.), cited above, § 558).

34. The present case involved heavy shelling of towns and villages on either side of the line of contact for four days, resulting in many dead, wounded or temporarily homeless people as well as considerable damage to property and infrastructure on both sides. In these circumstances, and without any indication to the contrary, it was not a situation of “effective control” over an area.

35. It must therefore be determined whether there was “State agent authority and control” over individuals (the direct victims of the alleged violations) in accordance with the Court’s case-law. In earlier cases, such authority and control have been established in circumstances involving the exercise of physical power and control over the persons in question or when there has been an element of proximity (see Georgia v. Russia (II) , cited above, §§ 130-132, with further references).

36. However, the active phase of hostilities under examination in the present case was very different, as it concerned bombing and artillery shelling by the armed forces on both sides of the conflict, seeking to put the enemy force hors de combat and capture territory. The factual elements of the case do not reveal any instance of control over or proximity to the individuals in question. In these circumstances, there cannot be said to have been “State agent authority and control” over individuals in regard to the events complained of by the applicants.

37. In conclusion, the Court finds that the military operations and their consequences at issue in the present case did not fall within the jurisdiction of Azerbaijan for the purposes of Article 1 of the Convention, either as “effective control” over territory or as “State agent authority and control” over individuals. It follows that all the applicants’ complaints must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Done in English and notified in writing on 5 October 2023.

Victor Soloveytchik Georges Ravarani Registrar President