GRAND CHAMBER
CASE OF CHIRAGOV AND OTHERS v. ARMENIA
(Application no. 13216/05)
JUDGMENT
(Merits)
STRASBOURG
16 June 2015
This judgment is final.
In the case of Chiragov and Others v. Armenia,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Dean Spielmann, President,
Josep Casadevall,
Guido Raimondi,
Mark Villiger,
Isabelle Berro,
Ineta Ziemele,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Khanlar Hajiyev,
George Nicolaou,
Luis López Guerra,
Ganna Yudkivska,
Paulo Pinto de Albuquerque,
Ksenija Turković,
Egidijus Kūris,
Robert Spano,
Iulia Antoanella Motoc, judges,
and Michael O’Boyle, Deputy Registrar,
Having deliberated in private on 22 and 23 January 2014 and 22 January 2015,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in an application (no. 13216/05) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six Azerbaijani nationals, Mr Elkhan Chiragov, Mr Adishirin Chiragov, Mr Ramiz Gebrayilov, Mr Akif Hasanof, Mr Fekhreddin Pashayev and Mr Qaraca Gabrayilov (“the applicants”), on 6 April 2005. The sixth applicant died in June 2005. The application was pursued on his behalf by his son, Mr Sagatel Gabrayilov.
2. The applicants, who had been granted legal aid, were represented by Mr M. Muller QC, Ms C. Vine, Ms M. Butler, Mr M. Ivers, Ms B. Poynor and Mr S. Swaroop, lawyers practising in London, as well as Mr K. Yıldız. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia before the Court.
3. The applicants alleged, in particular, that they were prevented from returning to the district of Lachin, located in a territory occupied by the government, and thus unable to enjoy their property and homes there, and that they had not received any compensation for their losses. They submitted that this amounted to continuing violations of Article 1 of Protocol No. 1 and of Article 8 of the Convention. Moreover, they alleged a violation of Article 13 of the Convention in that no effective remedy was available in respect of the above complaints. Finally, they claimed, with a view to all the complaints set out above, that they were subjected to discrimination by virtue of ethnic origin and religious affiliation in violation of Article 14 of the Convention.
4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). The Azerbaijani Government made use of their right to intervene under Article 36 § 1 of the Convention. They were represented by their Agent, Mr Ç. Asgarov.
5. On 9 March 2010 a Chamber of the Third Section, composed of Josep Casadevall, President, Elisabet Fura, Corneliu Bîrsan, Boštjan M. Zupančič, Alvina Gyulumyan, Egbert Myjer and Luis López Guerra, judges, and Stanley Naismith, Deputy Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).
6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. The President of the Court decided that, in the interest of the proper administration of justice, the present case and the case of Sargsyan v. Azerbaijan (application no. 40167/06) should be assigned to the same composition of the Grand Chamber (Rules 24, 42 § 2 and 71).
7. A hearing on the admissibility and merits of the application took place in public in the Human Rights Building, Strasbourg, on 15 September 2010 (Rule 59 § 3).
8. On 14 December 2011 the application was declared admissible by a Grand Chamber composed of Nicolas Bratza, President, Jean-Paul Costa, Christos Rozakis, Françoise Tulkens, Josep Casadevall, Nina Vajić, Corneliu Bîrsan, Peer Lorenzen, Boštjan M. Zupančič, Elisabet Fura, Alvina Gyulumyan, Khanlar Hajiyev, Egbert Myjer, Sverre Erik Jebens, Giorgio Malinverni, George Nicolaou and Luis López Guerra, judges, and Michael O’Boyle, Deputy Registrar.
9. The applicants and the Government each filed further observations (Rule 59 § 1) on the merits. In addition, third-party comments were received from the Azerbaijani Government.
10. A hearing on the merits took place in public in the Human Rights Building, Strasbourg, on 22 January 2014.
There appeared before the Court:
(a) for the Government
MrG. Kostanyan,Agent,
MrG. Robertson QC,Counsel,
MrE. Babayan,
MrT. Collis,Advisers;
(b) for the applicants
MrM. Muller QC,
MrM. Ivers,
MrS. Swaroop,
MsM. Butler,Counsel,
MsC. Vine,
MsB. Poynor,
MsS. Karakaş,
MsA. Evans,Advisers;
(c) for the Azerbaijani Government
MrÇ. Asgarov,Agent,
MrM.N. Shaw QC,
MrG. Lansky, Counsel,
MrO. Gvaladze,
MrH. Tretter,
MsT. Urdaneta Wittek,
Mr O. Ismayilov, Advisers.
The applicants, Mr Hasanof and Mr Pashayev, were also present.
The Court heard addresses by Mr Muller, Mr Swaroop, Mr Ivers, Ms Butler, Mr Robertson, Mr Shaw and Mr Lansky.
11. Following the hearing, the Court decided that the examination of the case did not require it to undertake a fact-finding mission or to conduct a hearing of witnesses.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background
12. At the time of the demise of the Union of Soviet Socialist Republics (USSR), the Nagorno-Karabakh Autonomous Oblast (NKAO) was an autonomous region (oblast) of the Azerbaijan Soviet Socialist Republic (“the Azerbaijan SSR”). Situated within the territory of the Azerbaijan SSR, it covered 4,388 sq. km. There was at the time no common border between Nagorno-Karabakh (known as Artsakh by its Armenian name) and the Armenian Soviet Socialist Republic (“the Armenian SSR”), which were separated by Azerbaijani territory, the district of Lachin being the shortest distance between them, including a strip of land often referred to as the “Lachin corridor”, less than 10 km wide.
13. According to the USSR census of 1989, the NKAO had a population of 189,000, consisting of 77% ethnic Armenians and 22% ethnic Azeris, with Russian and Kurdish minorities. The district of Lachin had a different demographic, the vast majority of its population of some 60,000 being Kurds and Azeris. Only 5-6% were Armenians.
14. In early 1988 demonstrations were held in Stepanakert, the regional capital of the NKAO, as well as in the Armenian capital, Yerevan, to demand the incorporation of Nagorno-Karabakh into Armenia. On 20 February the Soviet of the NKAO made a request to the Supreme Soviets of the Armenian SSR, the Azerbaijan SSR and the USSR that the NKAO be allowed to secede from Azerbaijan and join Armenia. The request was rejected by the Supreme Soviet of the USSR on 23 March. In June it was also rejected by the Supreme Soviet of Azerbaijan, whereas its counterpart in Armenia voted in favour of unification.
15. Throughout 1988 the demonstrations calling for unification continued. The district of Lachin was subjected to roadblocks and attacks. The clashes led to many casualties, and refugees, numbering in the hundreds of thousands on both sides, flowed between Armenia and Azerbaijan. As a consequence, on 12 January 1989 the USSR government placed the NKAO under Moscow’s direct rule. However, on 28 November, control of the region was returned to Azerbaijan. A few days later, on 1 December, the Supreme Soviet of the Armenian SSR and the Nagorno‑Karabakh Regional Council adopted a Joint Resolution on the reunification of Nagorno-Karabakh with Armenia. As a result of this Resolution, a joint budget for the two entities was established in January 1990 and a decision was taken to include Nagorno-Karabakh in the Armenian elections, which were to take place in the spring of that year.
16. In early 1990, following an escalation of the conflict, Soviet troops arrived in Baku and Nagorno-Karabakh and the latter was placed under a state of emergency. Violent clashes between Armenians and Azeris continued, however, with the occasional intervention by Soviet forces.
17. On 30 August 1991 Azerbaijan declared independence from the Soviet Union. This was subsequently formalised by the adoption of the Constitutional Act on the State Independence of the Republic of Azerbaijan of 18 October. On 2 September the Soviet of the NKAO announced the establishment of the “Republic of Nagorno-Karabakh” (the “NKR”), consisting of the territory of the NKAO and the Shahumyan district of Azerbaijan, and declared that it was no longer under Azerbaijani jurisdiction. On 26 November the Azerbaijani Parliament abolished the autonomy previously enjoyed by Nagorno-Karabakh. In a referendum organised in Nagorno-Karabakh on 10 December, 99.9% of those participating voted in favour of secession. However, the Azeri population boycotted the referendum. In the same month, the Soviet Union was dissolved and Soviet troops began to withdraw from the region. Military control of Nagorno‑Karabakh was rapidly being handed over to the Karabakh Armenians. On 6 January 1992 the “NKR”, having regard to the results of the referendum, reaffirmed its independence from Azerbaijan.
18. In early 1992 the conflict gradually escalated into a full-scale war. The ethnic Armenians conquered several Azeri villages, resulting in at least several hundred deaths and the departure of the population.
19. The district of Lachin, in particular the town of Lachin, was attacked many times. The applicants claimed that the attacks were made by troops of both Nagorno-Karabakh and Armenia. The 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. For almost eight months in 1991, the roads to Lachin were under the control of forces of Armenian ethnicity who manned and controlled checkpoints. The town of Lachin became completely isolated. In mid-May 1992 Lachin was subjected to aerial bombardment, during which many houses were destroyed.
20. On 17 May 1992 realising that troops were advancing rapidly towards Lachin, villagers fled. The following day the town of Lachin was captured by forces of Armenian ethnicity. It appears that the town was looted and burnt in the days following the takeover. According to information obtained by the Government from the authorities of the “NKR”, the city of Lachin and the surrounding villages of Aghbulag, Chirag and Chiragli were completely destroyed during the military conflict.
21. In July 1992 the Armenian Parliament decreed that it would not sign any international agreement stipulating that Nagorno-Karabakh remain a part of Azerbaijan.
22. According to a Human Rights Watch (HRW) report (“Azerbaijan: Seven Years of Conflict in Nagorno-Karabakh”, December 1994), the capture of the district of Lachin resulted in approximately 30,000 Azeri displaced persons, many of them of Kurdish descent.
23. Following the capture of Lachin, ethnic Armenian forces continued to conquer four more Azerbaijani districts surrounding Nagorno-Karabakh (Kelbajar, Jebrayil, Gubadly and Zangilan) and substantial parts of two others (Agdam and Fizuli).
24. On 5 May 1994 a ceasefire agreement, known as the Bishkek Protocol (“the Ceasefire Agreement”), was signed by Armenia, Azerbaijan and the “NKR” following Russian mediation. It came into force on 12 May.
25. According to the above-mentioned HRW report, between 1988 and 1994 an estimated 750,000 to 800,000 Azeris were forced out of Nagorno‑Karabakh, Armenia and the seven Azerbaijani districts surrounding Nagorno-Karabakh. According to information from the Armenian authorities, 335,000 Armenian refugees from Azerbaijan and 78,000 internally displaced persons (from regions in Armenia bordering Azerbaijan) have been registered.
B. Current situation
26. According to the Government, the “NKR” controls 4,061 sq. km of the former NKAO. While it is debated how much of the two partly conquered districts is occupied by the “NKR”, it appears that the occupied territory of the seven surrounding districts in total amounts to some 7,500 sq. km.
27. Estimates of today’s population of Nagorno-Karabakh vary between 120,000 and 145,000 people, 95% of whom are of Armenian ethnicity. Virtually no Azerbaijanis remain. The district of Lachin has a population of between 5,000 and 10,000 Armenians.
28. No 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. Recurring breaches of the Ceasefire Agreement along the borders have led to the loss of many lives and the rhetoric of officials remains hostile. Moreover, according to international reports, tension has heightened in recent years and military expenditure in Armenia and Azerbaijan has increased significantly.
29. Several proposals for a peaceful solution of the conflict have failed. Negotiations have been carried out under the auspices of the Organization for Security and Co-operation in Europe (OSCE) and its so-called Minsk Group. In Madrid in November 2007, the Group’s three Co-Chairs – France, Russia and the United States of America – presented to Armenia and Azerbaijan a set of Basic Principles for a settlement. The Basic Principles, which have since been updated, call, inter alia, for the return of the territories surrounding Nagorno-Karabakh to Azerbaijani control; an interim status for Nagorno-Karabakh providing guarantees for security and self-governance; a corridor linking Armenia to Nagorno-Karabakh; a future determination of the final legal status of Nagorno-Karabakh through a legally binding referendum; the right of all internally displaced persons and refugees to return to their former places of residence; and international security guarantees that would include a peacekeeping operation. The idea is that the endorsement of these principles by Armenia and Azerbaijan would enable the drafting of a comprehensive and detailed settlement. Following intensive shuttle diplomacy by Minsk Group diplomats and a number of meetings between the Presidents of the two countries in 2009, the process lost momentum in 2010. So far the parties to the conflict have not signed a formal agreement on the Basic Principles.
30. On 24 March 2011 the Minsk Group presented a “Report of the OSCE Minsk Group Co-Chairs’ Field Assessment Mission to the Occupied Territories of Azerbaijan Surrounding Nagorno-Karabakh”, the Executive Summary of which reads as follows.
“The OSCE Minsk Group Co-Chairs conducted a Field Assessment Mission to the seven occupied territories of Azerbaijan surrounding Nagorno-Karabakh (NK) from October 7-12, 2010, to assess the overall situation there, including humanitarian and other aspects. The Co-Chairs were joined by the Personal Representative of the OSCE Chairman-in-Office and his team, which provided logistical support, and by two experts from the UNHCR and one member of the 2005 OSCE Fact-Finding Mission. This was the first mission by the international community to the territories since 2005, and the first visit by UN personnel in 18 years.
In travelling more than 1,000 kilometers throughout the territories, the Co-Chairs saw stark evidence of the disastrous consequences of the Nagorno-Karabakh conflict and the failure to reach a peaceful settlement. Towns and villages that existed before the conflict are abandoned and almost entirely in ruins. While no reliable figures exist, the overall population is roughly estimated as 14,000 persons, living in small settlements and in the towns of Lachin and Kelbajar. The Co-Chairs assess that there has been no significant growth in the population since 2005. The settlers, for the most part ethnic Armenians who were relocated to the territories from elsewhere in Azerbaijan, live in precarious conditions, with poor infrastructure, little economic activity, and limited access to public services. Many lack identity documents. For administrative purposes, the seven territories, the former NK Oblast, and other areas have been incorporated into eight new districts.
The harsh reality of the situation in the territories has reinforced the view of the Co‑Chairs that the status quo is unacceptable, and that only a peaceful, negotiated settlement can bring the prospect of a better, more certain future to the people who used to live in the territories and those who live there now. The Co-Chairs urge the leaders of all the parties to avoid any activities in the territories and other disputed areas that would prejudice a final settlement or change the character of these areas. They also recommend that measures be taken to preserve cemeteries and places of worship in the territories and to clarify the status of settlers who lack identity documents. The Co-Chairs intend to undertake further missions to other areas affected by the NK conflict, and to include in such missions experts from relevant international agencies that would be involved in implementing a peace settlement.”
31. On 18 June 2013 the Presidents of the Co-Chair countries of the Minsk Group issued a Joint Statement on the Nagorno-Karabakh Conflict.
“We, the Presidents of the OSCE Minsk Group Co-Chair countries – France, the Russian Federation, and the United States of America – remain committed to helping the parties to the Nagorno-Karabakh conflict reach a lasting and peaceful settlement. We express our deep regret that, rather than trying to find a solution based upon mutual interests, the parties have continued to seek one-sided advantage in the negotiation process.
We continue to firmly believe that the elements outlined in the statements of our countries over the last four years must be the foundation of any fair and lasting settlement to the Nagorno-Karabakh conflict. These elements should be seen as an integrated whole, as any attempt to select some elements over others would make it impossible to achieve a balanced solution.
We reiterate that only a negotiated settlement can lead to peace, stability, and reconciliation, opening opportunities for regional development and cooperation. The use of military force that has already created the current situation of confrontation and instability will not resolve the conflict. A renewal of hostilities would be disastrous for the population of the region, resulting in loss of life, more destruction, additional refugees, and enormous financial costs. We strongly urge the leaders of all the sides to recommit to the Helsinki principles, particularly those relating to the non-use of force or the threat of force, territorial integrity, and equal rights and self-determination of peoples. We also appeal to them to refrain from any actions or rhetoric that could raise tension in the region and lead to escalation of the conflict. The leaders should prepare their people for peace, not war.
Our countries stand ready to assist the sides, but the responsibility for putting an end to the Nagorno-Karabakh conflict remains with them. We strongly believe that further delay in reaching a balanced agreement on the framework for a comprehensive peace is unacceptable, and urge the leaders of Azerbaijan and Armenia to focus with renewed energy on the issues that remain unresolved.”
C. The applicants and the property allegedly owned by them in the district of Lachin
32. The applicants have stated that they are Azerbaijani Kurds who lived in the district of Lachin, where their ancestors had lived for hundreds of years. On 17 May 1992 they were forced to flee from the district to Baku. They have since been unable to return to their homes and properties because of Armenian occupation.
1. Mr Elkhan Chiragov
33. Mr Elkhan Chiragov was born in 1950. He lived in the district of Lachin. In the original application, it was mentioned that he lived in the village of Chirag, but in the reply to the Government’s observations it was stated that his correct home village was Chiragli, where he worked as a teacher for fifteen years. He claimed that his possessions included a large furnished house of 250 sq. m, 55 beehives, 80 head of small livestock and nine head of big livestock, and five handmade carpets.
34. On 27 February 2007, together with the applicants’ reply to the Government’s observations, he submitted an official certificate (“technical passport”) dated 19 July 1985, according to which a two-storey, twelve-bedroom dwelling house with a total area of 408 sq. m (living area of 300 sq. m and subsidiary area of 108 sq. m) and a storehouse of 60 sq. m, situated on a plot of land of 1,200 sq. m, had been registered in his name.
35. He also presented a statement by three former neighbours, who affirmed that he owned a two-storey, sixteen-room dwelling house of 260 sq. m and a car, as well as a statement by A. Jafarov and A. Halilov, representatives of the Lachin City Executive Power of the Republic of Azerbaijan, who stated that Mr Elkhan Chiragov used to live in Chiragli.
36. Before the Grand Chamber, the applicant submitted, inter alia, a marriage certificate according to which he was born in Chiragli and married there in 1978, birth certificates for his son and daughter, both born in Chiragli in 1979 and 1990 respectively, as well as a letter dating from 1979 and a 1992 employment book issued by the Lachin District Educational Department, showing that he had worked as a teacher in Chiragli.
2. Mr Adishirin Chiragov
37. Mr Adishirin Chiragov was born in 1947. He lived in the district of Lachin. In the original application, it was mentioned that he lived in the village of Chirag, but in the reply to the Government’s observations it was stated that his correct home village was Chiragli, where he had worked as a teacher for twenty years. He claimed that his possessions included a large furnished house of 145 sq. m, a new “Niva” car, 65 head of small livestock and 11 head of big livestock, and six handmade carpets.
38. On 27 February 2007 he submitted a technical passport dated 22 April 1986, according to which a two-storey, eight-bedroom dwelling house with a total area of 230.4 sq. m (living area of 193.2 sq. m and subsidiary area of 37.2 sq. m) and a storehouse of 90 sq. m, situated on a plot of land of 1,200 sq. m, had been registered in his name.
39. He also presented a statement by three former neighbours, who affirmed that he owned a two-storey dwelling house with eight rooms, as well as a statement by A. Jafarov and A. Halilov, representatives of the Lachin City Executive Power of the Republic of Azerbaijan, who stated that Mr Adishirin Chiragov used to live in Chiragli.
40. Before the Grand Chamber, the applicant submitted, inter alia, a marriage certificate according to which he was born in Chiragli and married there in 1975, birth certificates for his son and two daughters, all born in Chiragli in 1977, 1975 and 1982 respectively, as well as a USSR passport issued in 1981, indicating Chiragli as his place of birth and containing a 1992 registration stamp designating Chiragli as his place of residence.
3. Mr Ramiz Gebrayilov
41. Mr Ramiz Gebrayilov was born in Chiragli in 1960. In 1988 he graduated with a degree in engineering from the Baku Polytechnical Institute. In 1983, while still studying in Baku, he visited the town of Lachin and was given a 5,000 sq. m plot of land by the State. He claimed that he had built a six-bedroom house with a garage on it and lived there with his wife and children until he was forced to leave in 1992. There were also some cattle sheds. He also owned a car repair business called “Auto Service”, a shop and a café, which were situated on a further 5,000 sq. m of land that he owned. In addition, he had 12 cows, 70 lambs and 150 sheep.
42. Mr Gebrayilov had been unable to return to Lachin since his departure in 1992. In 2001 Armenian friends of his went to Lachin and videotaped the condition of the houses in the town. According to the applicant, he could see from the video that his house had been burnt down. He had also been informed by people who left Lachin after him that his house had been burnt down by Armenian forces a few days after he had left Lachin.
43. On 27 February 2007 Mr Gebrayilov submitted a technical passport dated 15 August 1986, according to which a two-storey, eight-bedroom dwelling house with a total area of 203.2 sq. m (living area of 171.2 sq. m and subsidiary of area 32 sq. m), situated on a plot of land of 480 sq. m, had been registered in his name.
44. He also presented a statement by three former neighbours, who affirmed that he owned a two-storey house with eight rooms, as well as a statement by V. Maharramov, representative of the Lachin City Executive Power of the Republic of Azerbaijan, who stated that Mr Gebrayilov used to live in his personal house in Lachin.
45. Before the Grand Chamber, the applicant submitted, inter alia, a birth certificate and a marriage certificate according to which he was born in Chiragli and married there in 1982, birth certificates for his daughter and two sons, all born in Lachin in 1982, 1986 and 1988 respectively, as well as an army book issued in 1979.
4. Mr Akif Hasanof
46. Mr Akif Hasanof was born in 1959 in the village of Aghbulag in the district of Lachin. He worked there as a teacher for twenty years. He claimed that his possessions included a large furnished house of 165 sq. m, a new “Niva” car, 100 head of small livestock and 16 head of big livestock, and 20 handmade carpets.
47. On 27 February 2007 he submitted a technical passport dated 13 September 1985, according to which a two-storey, nine-bedroom dwelling house with a total area of 448.4 sq. m (living area of 223.2 sq. m and subsidiary area of 225.2 sq. m) and a storehouse of 75 sq. m, situated on a plot of land of 1,600 sq. m, had been registered in his name.
48. He also presented a statement by three former neighbours, who affirmed that he owned a two-storey, nine-room dwelling house as well as a stall for livestock and subsidiary buildings, as well as a statement by V. Maharramov, representative of the Lachin City Executive Power of the Republic of Azerbaijan, who stated that Mr Hasanof used to live in his personal house in Aghbulag.
49. Before the Grand Chamber, the applicant submitted a birth certificate, a USSR passport issued in 1976 and an employment book issued by the Lachin District Educational Department, indicating that he was born in Aghbulag and had worked as a teacher and school director in that village between 1981 and 1988.
5. Mr Fekhreddin Pashayev
50. Mr Fekhreddin Pashayev was born in 1956 in the village of Kamalli in the district of Lachin. After graduating with a degree in engineering from the Baku Polytechnical Institute in 1984, he returned to the town of Lachin where he was employed as an engineer and, from 1986, as chief engineer at the Ministry of Transport. He claimed that he owned and lived in a two‑storey, three-bedroom house in Lachin which he had built himself. The house was situated at no. 50, 28 Aprel Kucesi, Lachin Seheri, Lachin Rayonu. Mr Pashayev submitted that the current market value of the house would be 50,000 United States dollars (USD). He also owned the land around his house and had a share (about 10 ha) in a collective farm in Kamalli. Furthermore, he owned some land through “collective ownership”.
51. On 27 February 2007 he submitted a technical passport dated August 1990, according to which a two-storey dwelling house with a total area of 133.2 sq. m (living area of 51.6 sq. m and subsidiary area of 81.6 sq. m), situated on a plot of land of 469.3 sq. m, had been registered in his name.
52. He also presented a statement by three former neighbours, who affirmed that he owned a two-storey, four-room dwelling house, as well as a statement by V. Maharramov, representative of the Lachin City Executive Power of the Republic of Azerbaijan, who stated that Mr Pashayev used to live in his own house at 28 Aprel Kucesi, Lachin.
53. Before the Grand Chamber, the applicant submitted, inter alia, a marriage certificate according to which he was born in Kamalli and married there in 1985, birth certificates for his two daughters, born in Kamalli in 1987 and in Lachin in 1991 respectively, a birth certificate for his son, registered as having been born in Kamalli in 1993, as well as an army book issued in 1978 and an employment book dating from 2000. He explained that, while his son had in fact been born in Baku, it was normal under the USSR propiska system to record a child as having been born at the parents’ registered place of residence.
6. Mr Qaraca Gabrayilov
54. Mr Qaraca Gabrayilov was born in the town of Lachin in 1940 and died on 19 June 2005. On 6 April 2005, at the time of submitting the present application, he stated that, when he was forced to leave on 17 May 1992, he had been living at holding no. 580, N. Narimanov Street, flat 128a in the town of Lachin, a property he owned and which included a two-storey residential family house built in 1976 with a surface of 187.1 sq. m and a yard area of 453.6 sq. m. He also claimed that he owned a further site of 300 sq. m on that street. Annexed to the application was a technical passport dated August 1985, according to which a two-storey house with a yard, of the mentioned sizes, had been registered in his name.
55. On 27 February 2007, however, the applicant’s representatives submitted that he had been living at 41 H. Abdullayev Street in Lachin. Nevertheless, he owned the two properties on N. Narimanov Street. Attached to these submissions were a statement by three former neighbours and a statement by V. Maharramov, representative of the Lachin City Executive Power of the Republic of Azerbaijan, who stated that Mr Gabrayilov used to live in his own house at H. Abdullayev Street, Lachin. Attached were also a decision of 29 January 1974 by the Lachin District Soviet of People’s Deputies to allocate the above-mentioned plot of 300 sq. m to the applicant, and several invoices for animal feed, building materials and building subsidies allegedly used during the construction of his properties.
56. On 21 November 2007 Mr Sagatel Gabrayilov, the son of the applicant, stated that the family did used to live at N. Narimanov Street but that, on an unspecified date, the name and numbering of the street had been changed, their address thereafter being H. Abdullayev Street. Thus, the two addresses mentioned above referred to the same property.
57. Before the Grand Chamber, the applicant’s representatives submitted, inter alia, a birth certificate and a marriage certificate according to which he was born in Chiragli and married there in 1965, a birth certificate for his son, born in Alkhasli village in the district of Lachin in 1970, as well as an army book issued in 1963.
D. Relations between the Republic of Armenia and the “Republic of Nagorno-Karabakh”
58. The applicants and the Government as well as the third-party intervener, the Azerbaijani Government, submitted extensive documentation and statements on the issue of whether Armenia exercises authority in or control over the “NKR” and the surrounding territories. The information thus received is summarised below, in so far as considered relevant by the Court.
1. Military aspects
59. In 1993 the United Nations Security Council adopted the following four Resolutions relating to the Nagorno-Karabakh conflict.
Resolution 822 (1993), 30 April 1993, S/RES/822 (1993)
“The Security Council,
...
Noting with alarm the escalation in armed hostilities and, in particular, the latest invasion of the Kelbadjar district of the Republic of Azerbaijan by local Armenian forces,
...
1. Demands the immediate cessation of all hostilities and hostile acts with a view to establishing a durable cease-fire, as well as immediate withdrawal of all occupying forces from the Kelbadjar district and other recently occupied areas of Azerbaijan,
...”
Resolution 853 (1993), 29 July 1993, S/RES/853 (1993)
“The Security Council,
...
Expressing its serious concern at the deterioration of relations between the Republic of Armenia and the Azerbaijani Republic and at the tensions between them,
...
Noting with alarm the escalation in armed hostilities and, in particular, the seizure of the district of Agdam in the Azerbaijani Republic,
...
3. Demands the immediate cessation of all hostilities and the immediate, complete and unconditional withdrawal of the occupying forces involved from the district of Agdam and other recently occupied districts of the Azerbaijani Republic;
...
9. Urges the Government of the Republic of Armenia to continue to exert its influence to achieve compliance by the Armenians of the Nagorny-Karabakh region of the Azerbaijani Republic with its resolution 822 (1993) and the present resolution, and the acceptance by this party of the proposals of the Minsk Group of the [OSCE];
...”
Resolution 874 (1993), 14 October 1993, S/RES/874 (1993)
“The Security Council,
...
Expressing its serious concern that a continuation of the conflict in and around the Nagorny Karabakh region of the Azerbaijani Republic, and of the tensions between the Republic of Armenia and the Azerbaijani Republic, would endanger peace and security in the region,
...
5. Calls for the immediate implementation of the reciprocal and urgent steps provided for in the [OSCE] Minsk Group’s ‘Adjusted timetable’, including the withdrawal of forces from recently occupied territories and the removal of all obstacles to communication and transportation;
...”
Resolution 884 (1993), 12 November 1993, S/RES/884 (1993)
“The Security Council,
...
Noting with alarm the escalation in armed hostilities as [a] consequence of the violations of the cease-fire and excesses in the use of force in response to those violations, in particular the occupation of the Zangelan district and the city of Goradiz in the Azerbaijani Republic,
...
2. Calls upon the Government of Armenia to use its influence to achieve compliance by the Armenians of the Nagorny Karabakh region of the Azerbaijani Republic with resolutions 822 (1993), 853 (1993) and 874 (1993), and to ensure that the forces involved are not provided with the means to extend their military campaign further;
...
4. Demands from the parties concerned the immediate cessation of armed hostilities and hostile acts, the unilateral withdrawal of occupying forces from the Zangelan district and the city of Goradiz, and the withdrawal of occupying forces from the other recently occupied areas of the Azerbaijani Republic in accordance with the ‘Adjusted timetable of urgent steps to implement Security Council resolutions 822 (1993) and 853 (1993)’ ... as amended by the [OSCE] Minsk Group meeting in Vienna of 2 to 8 November 1993;
...”
60. The above-mentioned HRW report of December 1994 (see paragraph 22) contains accounts of the Nagorno-Karabakh conflict. While stating that “[a] Karabakh Armenian military offensive in May/June 1992 captured a large part of Lachin province”, it goes on to summarise the events in 1993 and 1994 as follows:
“... Karabakh Armenian troops – often with the support of forces from the Republic of Armenia – captured the remaining Azerbaijani provinces surrounding [Nagorno-] Karabakh and forced out the Azeri civilian population: the rest of Lachin province, and Kelbajar, Agdam, Fizuli, Jebrayil, Qubatli, and Zangelan provinces.”
The HRW report presents several pieces of information which point to an involvement of the Armenian army in Nagorno-Karabakh and the surrounding territories (see Chapter VII. The Republic of Armenia as a Party to the Conflict). Allegedly, Armenia had even sent members of its police force to perform police duties in the occupied territories. HRW spent two days in April 1994 interviewing Armenian uniformed soldiers on the streets of Yerevan. 30% of them were draftees in the Armenian army who had either fought in Karabakh, had orders to go to Karabakh or had ostensibly volunteered for service there. Moreover, on a single day in April 1994 HRW researchers had counted five buses holding an estimated 300 soldiers of the Armenian army entering Nagorno-Karabakh from Armenia. Other western journalists had reported to HRW researchers that they had seen eight more buses full of Armenian army soldiers heading for Azerbaijani territory from Armenia. According to HRW, as a matter of law, Armenian army troop involvement in Azerbaijan made Armenia a party to the conflict and made the war an international armed conflict between Armenia and Azerbaijan.
61. Several proposals for a solution to the conflict have been presented within the Minsk Group. A “package deal” proposal of July 1997 set out, under the heading “Agreement I – The end of armed hostilities”, a two‑stage process of the withdrawal of armed forces. The second stage included the provision that “[t]he armed forces of Armenia [would] be withdrawn to within the borders of the Republic of Armenia”.
The “step-by-step” approach presented in December 1997 also contained a two-stage withdrawal process and stipulated, as part of the second phase, that “[a]ll Armenian forces located outside the borders of the Republic of Armenia [would] be withdrawn to locations within those borders”. Substantially the same wording was used in the “common state deal” proposal of November 1998.
While these documents were discussed in Minsk Group negotiations, none of them led to an agreement between Armenia and Azerbaijan.
62. The applicants referred to statements by various political leaders and observers. For instance, Mr Robert Kocharyan, then Prime Minister of the “NKR”, stated in an interview with the Armenian newspaper Golos Armenii in February 1994, that Armenia supplied anti-aircraft weapons to Nagorno-Karabakh.
Moreover, Mr Vazgen Manukyan, Armenian Minister of Defence from 1992 to 1993, admitted in an interview with British journalist and writer, Thomas de Waal, in October 2000 that the public declarations stating that the Armenian army had not taken any part in the war had been purely for foreign consumption:[1]
“You can be sure that whatever we said politically, the Karabakh Armenians and the Armenian army were united in military actions. It was not important for me if someone was a Karabakhi or an Armenian.”
63. The annual report of the International Institute for Strategic Studies (IISS), “The Military Balance”, for the years 2002, 2003 and 2004 assessed that, of the 18,000 troops in Nagorno-Karabakh, 8,000 were personnel from Armenia. The 2013 report stated, inter alia, that “since 1994, Armenia has controlled most of Nagorno-Karabakh, and also seven adjacent regions of Azerbaijan, often called the ‘occupied territories’”.[2]
64. Mr David Atkinson, rapporteur of the Parliamentary Assembly of the Council of Europe (PACE), stated in November 2004 in his second report to the Political Affairs Committee on “The Conflict over the Nagorno-Karabakh region dealt with by the OSCE Minsk Conference” concerning Nagorno-Karabakh (Doc. 10364, 29 November 2004) as follows.
“According to the information given to me, Armenians from Armenia had participated in the armed fighting over the Nagorno-Karabakh region besides local Armenians from within Azerbaijan. Today, Armenia has soldiers stationed in the Nagorno-Karabakh region and the surrounding districts, people in the region have passports of Armenia, and the Armenian government transfers large budgetary resources to this area.”
Based on this report, the Parliamentary Assembly adopted on 25 January 2005 Resolution 1416 (2005) on the conflict over the Nagorno-Karabakh region dealt with by the OSCE Minsk Conference in which it noted, inter alia, as follows.
“1. The Parliamentary Assembly regrets that, more than a decade after the armed hostilities started, the conflict over the Nagorno-Karabakh region remains unsolved. Hundreds of thousands of people are still displaced and live in miserable conditions. Considerable parts of the territory of Azerbaijan are still occupied by Armenian forces, and separatist forces are still in control of the Nagorno-Karabakh region.
2. The Assembly expresses its concern that the military action, and the widespread ethnic hostilities which preceded it, led to large-scale ethnic expulsion and the creation of mono-ethnic areas which resemble the terrible concept of ethnic cleansing. The Assembly reaffirms that independence and secession of a regional territory from a state may only be achieved through a lawful and peaceful process based on the democratic support of the inhabitants of such territory and not in the wake of an armed conflict leading to ethnic expulsion and the de facto annexation of such territory to another state. The Assembly reiterates that the occupation of foreign territory by a member state constitutes a grave violation of that state’s obligations as a member of the Council of Europe and reaffirms the right of displaced persons from the area of conflict to return to their homes safely and with dignity.”
65. In its report “Nagorno-Karabakh: Viewing the Conflict from the Ground” of 14 September 2005, the International Crisis Group (ICG) stated the following regarding the armed forces in the “NKR” (pp. 9-10).
“[Nagorno-Karabakh] may be the world’s most militarized society. The highly trained and equipped Nagorno-Karabakh Defence Army is primarily a ground force, for which Armenia provides much of the backbone. A Nagorno-Karabakh official told Crisis Group it has some 20,000 soldiers, while an independent expert [U.S. military analyst Richard Giragosian, July 2005] estimated 18,500. An additional 20,000 to 30,000 reservists allegedly could be mobilised. Based on its population, Nagorno‑Karabakh cannot sustain such a large force without relying on substantial numbers of outsiders. According to an independent assessment [by Mr Giragosian], there are 8,500 Karabakh Armenians in the army and 10,000 from Armenia. ...
Nevertheless, many conscripts and contracted soldiers from Armenia continue to serve in [Nagorno-Karabakh]. The (de facto) minister of defence admits his forces have 40 per cent military contract personnel, including citizens of Armenia. He claims that no Armenian citizens are unwillingly conscripted and says 500,000 Armenians of Nagorno-Karabakh descent live in Armenia, some of whom serve in the Nagorno‑Karabakh forces. Former conscripts from Yerevan and other towns in Armenia have told Crisis Group they were seemingly arbitrarily sent to Nagorno‑Karabakh and the occupied districts immediately after presenting themselves to the recruitment bureau. They deny that they ever volunteered to go to Nagorno‑Karabakh or the adjacent occupied territory. They were not paid a bonus for serving outside Armenia, and they performed military service in Nagorno-Karabakh uniform, under Nagorno-Karabakh military command. Young Armenian recruits’ opposition to serving in Nagorno-Karabakh has increased, which may help explain an apparent decrease in the numbers being sent to [Nagorno-Karabakh].
There is a high degree of integration between the forces of Armenia and Nagorno‑Karabakh. Senior Armenian authorities admit they give substantial equipment and weaponry. Nagorno-Karabakh authorities also acknowledge that Armenian officers assist with training and in providing specialised skills. However, Armenia insists that none of its army units are in Nagorno-Karabakh or the occupied territories around it.”
The Government objected to the report of the ICG, which organisation had no office in Armenia or the “NKR”. Furthermore, the statement on the number of Armenian servicemen in the “NKR” derived from an email with Mr Giragosian, who had been contacted by the Government and had given the following declaration:
“When I expressed this opinion I didn’t mean that the people serving in the Nagorno-Karabakh armed forces are soldiers. I meant that approximately that number of volunteers are involved in the Nagorno-Karabakh armed forces from Armenia and other States according to my calculations. As for the number I mentioned, I can’t insist that it’s correct as it is confidential information and nobody has the exact number. The reasoning behind my opinion was that I believe that many Armenians from different parts of the world participate in the Nagorno-Karabakh self-defence forces.”
66. On 19 April 2007 the Austrian newspaper Der Standard published an interview with the then Armenian Foreign Minister, Mr Vartan Oskanian. On the subject of the disputed territories, Mr Oskanian reportedly referred to them as “the territories, which are now controlled by Armenia”.
A few days later the Armenian Embassy in Austria issued a press release stating that Mr Oskanian had been misinterpreted and that the correct expression was “the territories, which are now controlled by Armenians”.
67. On 14 March 2008 the UN General Assembly adopted a Resolution on the situation in the occupied territories of Azerbaijan (A/RES/62/243). Recalling the 1993 Security Council Resolutions (see paragraph 59 above), it contains the following passages.
“The General Assembly,
...
2. Demands the immediate, complete and unconditional withdrawal of all Armenian forces from all occupied territories of the Republic of Azerbaijan;
3. Reaffirms the inalienable right of the population expelled from the occupied territories of the Republic of Azerbaijan to return to their homes, and stresses the necessity of creating appropriate conditions for this return, including the comprehensive rehabilitation of the conflict-affected territories;”
68. In an interview with Armenia Today, published on 29 October 2008, Mr Jirayr Sefilyan, a Lebanese-born Armenian military commander and political figure who was involved in the capture of the town of Shusha/Shushi in early May 1992, and later continued to serve in the armed forces of both the “NKR” and Armenia, reportedly made the following statement:
“We must turn the page of history, as starting from 1991 we have considered Karabakh as an independent State and declared that they should conduct negotiations. Who are we kidding? The whole world knows that the army of the NKR is a part of the Armenian armed forces, that the budget of the NKR is financed from the budget of Armenia, and that the political leaders of the NKR are appointed from Yerevan. It is time to consider Karabakh as a part of Armenia, one of its regions. In the negotiation process the territory of Karabakh should be considered as a territory of Armenia and no territorial cession must be made.”
69. In Resolution 2009/2216(INI) of 20 May 2010 on the need for an EU strategy for the South Caucasus, the European Parliament expressed, inter alia, the following:
“The European Parliament,
...
8. is seriously concerned that hundreds of thousands of refugees and IDPs who fled their homes during or in connection with the Nagorno‑Karabakh war remain displaced and denied their rights, including the right to return, property rights and the right to personal security; calls on all parties to unambiguously and unconditionally recognise these rights, the need for their prompt realisation and for a prompt solution to this problem that respects the principles of international law; demands, in this regard, the withdrawal of Armenian forces from all occupied territories of Azerbaijan, accompanied by deployment of international forces to be organised with respect of the UN Charter in order to provide the necessary security guarantees in a period of transition, which will ensure the security of the population of Nagorno-Karabakh and allow the displaced persons to return to their homes and further conflicts caused by homelessness to be prevented; calls on the Armenian and Azerbaijani authorities and leaders of relevant communities to demonstrate their commitment to the creation of peaceful inter-ethnic relations through practical preparations for the return of displaced persons; considers that the situation of the IDPs and refugees should be dealt with according to international standards, including with regard to the recent PACE Recommendation 1877(2009), ‘Europe’s forgotten people: protecting the human rights of long-term displaced persons’.”
70. On 18 April 2012 the European Parliament passed Resolution 2011/2315(INI) containing the European Parliament’s recommendations to the Council, the Commission and the European External Action Service on the negotiations of the EU-Armenia Association Agreement which, inter alia, noted that “deeply concerning reports exist of illegal activities exercised by Armenian troops on the occupied Azerbaijani territories, namely regular military manoeuvres, renewal of military hardware and personnel and the deepening of defensive echelons”. The European Parliament recommended that negotiations on the EU-Armenia Association Agreement be linked to commitments regarding “the withdrawal of Armenian forces from occupied territories surrounding Nagorno-Karabakh and their return to Azerbaijani control” and “call[ed] on Armenia to stop sending regular army conscripts to serve in Nagorno‑Karabakh”.
71. The applicants submitted that, on various occasions in 2012 and 2013, the Armenian President, Minister of Defence and high-ranking military staff visited the disputed territories to inspect troops, attend military exercises and hold meetings with military and other officials in the “NKR”. In July 2013 Armenia’s top army generals and other military officials, including the Armenian Minister of Defence and the commanders of the armed forces of the “NKR”, held a meeting in Nagorno-Karabakh, focusing on efforts to strengthen the Armenian military.
72. On 15 January 2013 the Armenian President, Mr Serzh Sargsyan held a meeting with the leaders of the legislative, executive and judiciary branches of the Armenian Ministry of Defence. The speech he gave at the meeting was published the same day on the official website of the President of the Republic of Armenia. It contained, inter alia, the following statements.
“It happened that from the first years of independence, the Army has been playing a special role in our society. It was the war, whose spirit was felt all over Armenia – in some places more than in the others. In those days, every family had a close or a distant relative in the Armenian Army; and the Army was in everyone’s heart. That feeling became stronger when our Army attained victory which was so important, which was vital.
...
The ultimate goal of our foreign policy is the final legal formulation of the victory achieved in the aggressive war unleashed by Azerbaijan against Artsakh. The Republic of Nagorno Karabakh must be recognized by the international community since there is no logical explanation as to why the people, who have exercised their legal right for self-determination and later protected it in the uneven war, should ever be part of Azerbaijan. Why the destiny of these people should be defined by the illegal decision once made by Stalin?
...
Armenia and Artsakh do not want war; however everyone must know that we will give a fitting rebuff to any challenge. The people of Artsakh will never face the danger of physical extermination again. The Republic of Armenia will guarantee against that.
...
Security of Artsakh is not a matter of prestige for us; it is a matter of life and death in the most direct sense of these words. The entire world must know and realize that we, the power structures of Armenia and Artsakh stand against the army which pays wages to the murderers, if that horde can be called army in the first place.”
73. In an opinion drawn up at the request of the Government, Dr Hari Bucur-Marcu, a military expert of Romanian nationality, stated that he had found nothing in the Armenian military policy that envisaged any form of control over “NKR” forces or any indication on the ground that Armenian forces were present or active in the “NKR”. He further concluded that there was no evidence that Armenia exercised any control or authority over the “NKR” or its defence force, or that Armenian forces exercised any control over the government or governance of the “NKR”. The Government stated that Dr Bucur-Marcu had been given the opportunity to interview senior military officers in Armenia and access their records. Furthermore, by arrangement with the “NKR” Ministry of Foreign Affairs, he had been able to travel there and talk to military and political officials, as well as examine documents.
74. On 25 June 1994 an Agreement on Military Cooperation between the Governments of the Republic of Armenia and the “Republic of Nagorno‑Karabakh” (“the 1994 Military Agreement”) was concluded. It provides, inter alia, the following:
“The Government of the Republic of Armenia and the Government of the Republic of Nagorno-Karabakh (‘the Parties’),
having regard to mutual interest in the field of military cooperation, to the need to develop bilateral relationships and mutual trust through cooperation between the armed forces of the States of the Parties, seeking to strengthen the military and military-technical cooperation,
agreed on the following:
...
Article 3
Both Parties shall engage in the military cooperation in the following areas:
1. establishment of the army and reform of the armed forces;
2. military science and education;
3. military legislation;
4. logistics of the armed forces;
5. medical rehabilitation of military personnel and their family members;
6. cultural and sports activities and tourism.
The Parties shall agree in writing whether they wish to cooperate in other areas.
Article 4
The Parties shall cooperate through:
1. visits and working meetings at the level of Ministers of Defence, Chiefs of General Staff or other representatives authorised by the Ministers of Defence;
2. consultations, exchanges of experience, military staff training and skills enhancement;
3. implementation of mutual military exercises;
4. participation in conferences, consultations and seminars;
5. exchanges of information, documents and services in accordance with specific arrangements;
6. cultural events;
7. provision of military services;
8. creation of conditions for the mutual use of elements of infrastructure of the armed forces of the Parties within the framework of this Agreement;
9. education of highly qualified military and technical staff and specialists.
Within the framework of cooperation under this Agreement, the Parties shall agree that conscripts from Armenia and the NKR have the right to serve their fixed-term military service in Nagorno‑Karabakh and Armenia respectively. In such cases, the conscripts concerned shall be considered exempt from the fixed-term military service in the territory of that State the person shall be considered exempt from the fixed-term military service in the country of their citizenship.
Article 5
Within the framework of this Agreement, the Parties shall also agree that
1. should an Armenian citizen serving fixed-term military service in the NKR commit a military crime, the criminal prosecution and trial against him or her shall be conducted on Armenian territory by Armenian authorities in accordance with the procedure established under Armenian legislation;
2. should a citizen of the NKR serving fixed-term military service in Armenia commit a military crime, the criminal prosecution and trial against him or her shall be conducted on the territory of the NKR by the authorities of the NKR in accordance with the procedure established under NKR legislation.
Within the framework of this Agreement the Parties will provide mutual technical support with regard to armament and recovery and maintenance of military equipment.
Concluding agreements with those performing activities on armament and recovery and maintenance of military equipment, as well as ensuring the living conditions of the representatives of manufacturing enterprises in the territory of the States of the Parties shall be carried out by the Ministry of Defence of the client State.
Other forms of cooperation shall be conducted upon mutual written agreement.
...”
75. The Government asserted that the Armenian conscripts who, pursuant to Article 4 of the Agreement, performed their service in the “NKR” were mainly in the lower ranks and comprised no more than 5% (up to 1,500 persons) of the “NKR” defence force. However, the Government did not rule out the possibility that some Armenian nationals may have served in the “NKR” defence force on a contractual and voluntary basis. Among those serving in the “NKR” defence force, side by side with inhabitants of Nagorno-Karabakh, were also volunteers of Armenian origin from various countries where there is an Armenian diaspora. Allegedly, the Armenian soldiers serving in the “NKR” were under the direct command of the “NKR” defence force, which was the only armed force operational in the “NKR”. The Government maintained that the Armenian conscripts serving in the “NKR” under the Agreement did so of their own accord (see, however, the ICG report, paragraph 65 above).
The Government further stated that the Armenian army and the “NKR” defence force cooperate in a defence alliance on matters such as intelligence sharing, visits of senior officers, seminars, joint military exercises, parade inspections and the like.
76. On 11 October 2007 the Court issued a partial decision as to the admissibility of Zalyan, Sargsyan and Serobyan v. Armenia ((dec.), nos. 36894/04 and 3521/07, 11 October 2007), which concerns the alleged ill‑treatment and unlawful detention of three military servicemen. The facts of the case reveal that the applicants had been drafted into the Armenian army in May 2003 and had been assigned to military unit no. 33651, stationed near the village of Mataghis in the Martakert region of the “NKR”. Two servicemen of the same military unit were found dead in January 2004. A criminal investigation into their murders ensued and the applicants were questioned for a number of days in April 2004 in Nagorno-Karabakh – first at their military unit, then at the Martakert Garrison Military Prosecutor’s Office and finally at the Stepanakert Military Police Department – before being transported to Yerevan for further proceedings. The officers conducting the questioning of the applicants in Nagorno-Karabakh included two investigators of the Military Prosecutor’s Office of Armenia, an investigator of the Martakert Garrison Military Prosecutor’s Office and an Armenian military police officer. A chief of battalion of the military unit was also present at the first questioning. The applicants were subsequently charged with murder and the criminal trial against them commenced in November 2004 at the Syunik Regional Court’s seat in Stepanakert. The applicants were present at the trial. On 18 May 2005 the court found the applicants guilty of murder and sentenced them to fifteen years’ imprisonment.
77. Similarly, as reported by the human rights organisation Forum 18, as well as HRW, Mr Armen Grigoryan, an Armenian citizen and conscientious objector, was taken from a military recruitment office in Yerevan in June 2004 and transferred to a military unit based in Nagorno-Karabakh. Having fled the unit, Mr Grigoryan was arrested and eventually found guilty of having refused military service by a court sitting in Stepanakert on 9 June 2005 and sentenced to two years’ imprisonment.
2. Political and judicial connections
78. Several prominent Armenian politicians have held, at different times, high positions in both Armenia and the “NKR”, or have had close ties to Nagorno-Karabakh. The first Armenian President, Mr Levon Ter-Petrosyan, was a member of the Armenian “Karabakh Committee” which, in the late 1980s, led the movement for unification of Nagorno-Karabakh with Armenia. In April 1998 he was succeeded as Armenian President by Mr Robert Kocharyan, who had previously served as Prime Minister of the “NKR” from August 1992 to December 1994, as President of the “NKR” from December 1994 to March 1997 and as Armenian Prime Minister from March 1997 to April 1998. In April 2008 Mr Serzh Sargsyan became the third Armenian President. In August 1993 he had been appointed Armenian Minister of Defence after serving from 1989 to 1993 as Chairman of the “Self-Defense Forces Committee of the Republic of Nagorno-Karabakh”. Furthermore, in 2007 Mr Seyran Ohanyan switched from being the Minister of Defence of the “NKR” to becoming the Commander-in-Chief of the Armenian armed forces. In April 2008 he was appointed Armenian Minister of Defence.
79. The applicants claimed that Armenian law applies in the “NKR”. However, according to the Government, between January 1992 and August 2006 the “NKR” adopted 609 different laws, one of the first being the Law on the basis of the State independence of the “Republic of Nagorno-Karabakh”. Article 2 of this Law provides that the “NKR decides independently all issues concerning the Republic’s political, economic, social and cultural, construction, administrative and territorial division policies”. Furthermore, in January 1992 bodies of executive and judicial power were created, including the Council of Ministers (its government), the Supreme Court and first-instance courts of the “NKR”, as well as the “NKR” prosecutor’s office. The “NKR” also has its own President, Parliament and police force, as well as local self-government bodies, including administrations governing the territories surrounding the “NKR”, whose representatives are appointed by “NKR” authorities. It also holds its own presidential and parliamentary elections. While several laws have been adopted from Armenian legislation, the Government maintained that they did not apply automatically, that is, by decisions of Armenian courts, but were independently interpreted and applied by “NKR” courts, whether in the district of Lachin or elsewhere.
3. Financial and other support
80. In its 2005 report (see paragraph 65 above,), the ICG stated the following (pp. 12-13).
“The economy of Nagorno-Karabakh was previously integrated into [that of] Soviet Azerbaijan but was largely destroyed by the war. Today it is closely tied to Armenia and highly dependent on its financial inputs. All transactions are done via Armenia, and products produced in Nagorno-Karabakh often are labelled ‘made in Armenia’ for export. Yerevan provides half the budget. ...
Nagorno-Karabakh is highly dependent on external financial support, primarily from Armenia but also from the U.S. and the world-wide diaspora. It cannot collect sufficient revenue to meet its budgetary needs, and in absolute terms is receiving increasing external support. The 2005 budget totalled 24.18 billion drams (some $53.73 million). Locally collected revenues are expected to total 6.46 billion drams (about $14.35 million), 26.7 per cent of expenditures.
Since 1993 Nagorno-Karabakh has benefited from an Armenian ‘inter-state loan’. According to the Armenian prime minister, this will be 13 billion drams ($28.88 million) in 2005, a significant increase from 2002 when it was 9 billion drams ($16.07 million). However, Nagorno-Karabakh’s (de facto) prime minister argues that part of this loan – 4.259 billion drams (about $9.46 million) – is in fact Armenia’s repayment of VAT, customs and excise duties that Armenia levies on goods that pass through its territory, destined for Nagorno-Karabakh. The remainder of the loan has a ten-year repayment period at nominal interest. Though Armenia has provided such loans since 1993, nothing has been repaid. According to the Armenian prime minister, Stepanakert ‘is not yet in a position to repay ... . In the coming years we will need to continue providing this loan to help them continue building their infrastructure ... we do not envision that they will be able to go ahead on their own anytime soon’.
The U.S. is the only other state that provides direct governmental assistance. In 1998 Congress for the first time designated Nagorno-Karabakh a recipient of humanitarian aid distinct from Azerbaijan. The U.S. money is administered by its Agency for International Development (USAID), which has distributed it to such NGOs as the Fund for Armenian Relief, Save the Children, and the International Committee of the Red Cross. Through September 2004, the U.S. had pledged $23,274,992 to Nagorno‑Karabakh and had spent $17,831,608. Armenian lobby groups have been influential in making these allocations possible.”
The ICG further stated that the Armenian “inter-state loan” had accounted for 67.3% of the “NKR” budget in 2001 (according to the “Statistical Yearbook of Nagorno-Karabakh”) and 56.9% in 2004 (according to an ICG communication with the NK National Statistical Service Director).
81. The loan provided by Armenia to the “NKR” for the years 2004 and 2005 amounted to USD 51 million. USD 40 million went to rebuilding educational institutions and USD 11 million to help the families of soldiers killed in action.
82. The Hayastan All-Armenian Fund (“the Fund”) was founded by an Armenian presidential decree on 3 March 1992. According to its official website, its mission is the following:
“[T]o unite Armenians in Armenia and overseas to overcome the country’s difficulties and to help establish sustainable development in Armenia and Artsakh. In addition to [the] problems associated with the break-up of the Soviet Union, the government had to find solutions to the aftermath of the 1988 Spitak earthquake, an economic blockade and the rehabilitation of areas that had suffered from the Artsakh conflict.”
The Fund’s 2012 annual report includes messages from Mr Serzh Sargsyan, Armenian President, and Mr Bako Sahakyan, “President of the Republic of Artsakh”, which, inter alia, contain the following statements.
Mr Sargsyan:
“The Hayastan All-Armenian Fund is an embodiment of the unity between Armenia, Artsakh and the diaspora. As such, the fund is consistently, resolutely, and before our very eyes transforming our pan-national inner strength into tangible power.”
Mr Sahakyan:
“The year 2012 was a jubilee year for the Armenian people. As a nation, we celebrated the 20th anniversary of the founding of the NKR Defense Army and the liberation of Shushi, a magnificent victory which was made possible by the united efforts and indestructible will of the entire Armenian people, the selfless bravery and daring of its valiant sons and daughters.”
The Fund has twenty-five affiliates in twenty-two different countries. Its resources come from individual donations, mainly from members of the Armenian diaspora. It now raises about USD 21 million annually.
The Board of Trustees is the Fund’s supreme governing body. Under the Fund’s Charter, the Armenian President is ex officio the President of the Board of Trustees. The Board, which during its existence has had between twenty-two and thirty-seven members, includes many prominent individuals and representatives of political, non-governmental, religious and humanitarian institutions from Armenia and the diaspora. In 2013 the Board, in addition to the Armenian President, Mr Sargsyan, comprised the former Armenian President, Mr Kocharyan; the Armenian Prime Minister, as well as the Ministers of Foreign Affairs, Finance and Diaspora; the President, former President and Prime Minister of the “NKR”; the Chairmen of the Armenian Constitutional Court, National Assembly and Central Bank; four Armenian religious leaders; three representatives of Armenian political parties; a representative of the Union of Manufacturers and Businessmen (Employers) of Armenia; and representatives of four non-governmental organisations incorporated in the United States of America and Canada. The remainder of the thirty-seven person Board was made up of thirteen individuals from the Armenian diaspora. The composition of the Board has been similar since the Fund’s creation.
The Fund has financed and overseen numerous projects since its establishment, including the construction and renovation of roads, housing, schools, hospitals, as well as water and gas networks. In the mid to late 1990s it constructed the highway linking the town of Goris in Armenia with Lachin and with Shusha/Shushi and Stepanakert in Nagorno‑Karabakh. In 2001 it financed the construction of the north-south highway in Nagorno-Karabakh. According to the Fund’s 2005 annual report, it had paid approximately USD 11 million during the year for various projects, of which about USD 6.1 million had gone to projects in Nagorno‑Karabakh. According to figures provided by the Government, the not fully complete expenditure for 2012 amounted to USD 10.7 million in Nagorno-Karabakh and USD 3.1 million in Armenia. Also according to Government figures, in 1995-2012 the fund allocated about USD 111 million in total – or about USD 6 million annually – to projects in Nagorno-Karabakh. In 1992-2012 it allocated USD 115 million to projects in Armenia.
83. The applicants and the Azerbaijani Government claimed that residents of the “NKR” and the surrounding territories are routinely issued with Armenian passports. In its 2005 report (see paragraph 65 above), the ICG stated that “Armenia has given a majority of the inhabitants its passports for travel abroad” (at p. 5). The Azerbaijani Government also pointed to the possibility for residents of the mentioned territories to acquire Armenian citizenship. They referred to section 13 (“Citizenship by Naturalisation”) of the Law of the Republic of Armenia on citizenship of the Republic of Armenia, which provides as follows.
“Any person who is eighteen or older and capable of working that is not an RA citizen may apply for RA citizenship, if he/she:
(1) has been lawfully residing on the territory of the Republic of Armenia for the preceding three years;
(2) is proficient in the Armenian language; and
(3) is familiar with the Constitution of the Republic of Armenia.
A person who is not an RA citizen may be granted RA citizenship without being subject to the conditions set forth in subsections (1) and (2) of the first part of this section, if he/she:
(1) marries a citizen of the Republic of Armenia or has a child who holds RA citizenship;
(2) has parents or at least one parent that had held RA citizenship in the past or was born on the territory of the Republic of Armenia and had applied for RA citizenship within three years of attaining the age of 18;
(3) is Armenian by origin (is of Armenian ancestry); or
(4) has renounced RA citizenship of his/her own accord after 1 January 1995.”
The respondent Government, for their part, stated that both Armenia and the “NKR” have provisions for dual citizenship. Moreover, in accordance with an Agreement of 24 February 1999 with the “NKR” on the organisation of the passport system, Armenia issues passports to residents of the “NKR” in certain circumstances. Article 1 of the Agreement reads as follows.
“The Parties agree that their citizens have the right to free movement and residence on the territory of each of the Parties.
Within the scope of this Agreement, until the Republic of Nagorno-Karabakh is internationally recognised, the citizens of the Republic of Nagorno-Karabakh wishing to leave the territory of either the Republic of Nagorno-Karabakh or the Republic of Armenia may apply for and obtain an Armenian passport.
The Parties agree that, within the scope of this Article, the obtaining of an Armenian passport by citizens of the Republic of Nagorno-Karabakh does not confer on them Armenian citizenship. Those passports may only be used for travel outside the territories of the Republic of Armenia and the Republic of Nagorno-Karabakh by citizens of the Republic of Nagorno-Karabakh, and cannot be used as an identification document for internal use in the Republic of Nagorno‑Karabakh or in the Republic of Armenia.”
Regulations on the application of this Agreement were also issued in 1999 and provide that an Armenian passport shall be issued to an “NKR” resident only in exceptional cases where the purpose for going abroad is medical, educational or concerns another personal matter. The Government asserted that fewer than 1,000 persons had been issued with a passport under the 1999 Agreement.
84. The applicants and the Azerbaijani Government stated that the Armenian dram was the main currency in the “NKR”, whereas the respondent Government maintained that the currencies accepted there also included euros, United States dollars, pounds sterling and even Australian dollars.
85. The Azerbaijani Government pointed out that the National Atlas of Armenia, published in 2007 by the State Committee of the Real Estate Cadastre, adjunct to the Armenian Government, and thus allegedly an official publication, consistently incorporated the “NKR” and the surrounding occupied territories within the boundaries of the Republic of Armenia on various types of maps.
86. The applicants and the Azerbaijani Government submitted that the Armenian Government has a policy of encouraging settlers to move to the “NKR” from Armenia and, more recently, Syria.
In February 2005 the “Report of the OSCE Fact‑Finding Mission (FFM) to the Occupied Territories of Azerbaijan Surrounding Nagorno-Karabakh (NK)” was published. The mandate of the FFM was to determine whether settlements existed in the territories; military structures and personnel as well as political considerations were strictly outside that mandate. In regard to settlements in the district of Lachin, the Report concluded:
“Generally, the pattern of settlers’ origins in Lachin is the same as in the other territories. Thus, the overwhelming majority has come to Lachin from various parts of Azerbaijan, mostly after years of living in temporary shelters in Armenia. A comparatively small minority are Armenians from Armenia, including earthquake victims. They heard about Lachin as a settlement options [sic] by word-of-mouth, through the media or from NGOs in Armenia and NK. There was no evidence of non‑voluntary resettlement or systematic recruitment.”
The Report further stated.
“The direct involvement of NK in Lachin District is uncontested. Nagorno‑Karabakh provides the Lachin budget and openly acknowledges direct responsibility for the district. Lachin residents take part both in local and NK elections.
While the links between Nagorno Karabakh and the Republic of Armenia remain outside the purview of this report, the FFM found no evidence of direct involvement of the government of Armenia in Lachin settlement. However, the FFM did interview certain Lachin residents who had Armenian passports and claimed to take part in Armenian elections.”
II. THE JOINT UNDERTAKING OF ARMENIA AND AZERBAIJAN
87. Prior to their accession to the Council of Europe, Armenia and Azerbaijan gave undertakings to the Committee of Ministers and the Parliamentary Assembly committing themselves to the peaceful settlement of the Nagorno-Karabakh conflict (see Parliamentary Assembly Opinions 221 (2000) and 222 (2000) and Committee of Ministers Resolutions Res(2000)13 and Res(2000)14).
The relevant paragraphs of Parliamentary Assembly Opinion 221 (2000) on Armenia’s application for membership of the Council of Europe read as follows.
“10. The Assembly takes note of the letter from the President of Armenia in which he undertakes to respect the cease-fire agreement until a final solution is found to the conflict [in Nagorno-Karabakh] and to continue the efforts to reach a peaceful negotiated settlement on the basis of compromises acceptable to all parties concerned.
...
13. The Parliamentary Assembly takes note of the letters from the President of Armenia, the speaker of the parliament, the Prime Minister and the chairmen of the political parties represented in the parliament, and notes that Armenia undertakes to honour the following commitments:
...
13.2 the conflict in Nagorno-Karabakh:
a. to pursue efforts to settle this conflict by peaceful means only;
b. to use its considerable influence over the Armenians in Nagorno-Karabakh to foster a solution to the conflict;
c. to settle international and domestic disputes by peaceful means and according to the principles of international law (an obligation incumbent on all Council of Europe member states), resolutely rejecting any threatened use of force against its neighbours;
...”
Resolution Res(2000)13 of the Committee of Ministers on the Invitation to Armenia to become a member of the Council of Europe referred to the commitments entered into by Armenia, as set out in Opinion 221 (2000), and the assurances for their fulfilment given by the Armenian government.
III. RELEVANT DOMESTIC LAW
A. The laws of the Azerbaijan SSR
88. The laws relevant to the establishment of the applicants’ right to property were the 1978 Constitution of the Azerbaijan SSR and its 1970 Land Code and 1983 Housing Code.
1. The 1978 Constitution
89. The relevant provisions of the Constitution stated as follows.
Article 13
“The basis of the personal property of citizens of the Azerbaijan SSR is their earned income. Personal property may include household items, items of personal consumption, convenience and utility, a house, and earned savings. The personal property of citizens and the right to inherit it are protected by the State.
Citizens may be provided with plots of land as prescribed by law for subsidiary farming (including the keeping of livestock and poultry), gardening and the construction of individual housing. Citizens are required to use their land rationally. State and collective farms provide assistance to citizens for their smallholdings.
Personal property or property to which they have a right of use may not be used to make unearned income to the detriment of public interest.”
2. The 1970 Land Code
90. The relevant provisions of the Land Code stated as follows.
Article 4
State (people’s) ownership of land
“In accordance with the USSR Constitution and the Azerbaijan SSR Constitution, land is owned by the State – it is the common property of all Soviet people.
In the USSR land is exclusively owned by the State and is allocated for use only. Actions directly or indirectly violating the State’s right of ownership of land are forbidden.”
Article 24
Documents certifying the right of use of land
“The right of use by collective farms, State farms and others of plots of land shall be certified by a State certificate on the right of use.
The form of the certificate shall be determined by the USSR Soviet of Ministers in accordance with the land legislation of the USSR and the union republics.
The right of temporary use of land shall be certified by a certificate in the form determined by the Soviet of Ministers of the Azerbaijan SSR.”
Article 25
Rules on issuance of the certificates on the right of use of land
“The State certificates on the right of indefinite use of land and on the right of temporary use of land shall be issued to collective farms, State farms, other State, cooperative and public institutions, agencies and organisations, as well as to citizens, by the Executive Committee of the Soviet of People’s Deputies of the district or city (under the republic’s governance) in the territory of which the plot of land to be allocated for use is situated.”
Article 27
Use of land for specified purpose
“Users of land have a right to and should use the plots of land allocated to them for the purpose for which the plots of land were allocated.”
Article 28
Land users’ rights of use over allocated plots of land
“Depending on the designated purpose of an allocated plot of land, land users shall be entitled to the following in accordance with the relevant rules:
– to construct residential, industrial and public-amenities buildings as well as other buildings and structures;
– to plant agricultural plants, to afforest and to plant fruit, decorative and other trees;
– to use harvesting areas, pasture fields and other agricultural lands;
– to use widespread natural subsoil resources, peat and bodies of water for economic purposes, as well as other valuable properties of a land.
Article 126-1
Right of use of land in case of inheritance of ownership rights to a building
“If the ownership of a building located in a village is inherited and if the heirs do not have a right to buy a household plot in accordance with the relevant procedure, a right of use shall be given to them over a plot of land needed for keeping the building, in the size determined by the Soviet of Ministers of the Azerbaijan SSR.”
Article 131
Allocation of plots of land to citizens for construction of personal residential flats
“Land plots for the construction of single-flat residential buildings to become personal property shall be allocated to citizens who live in populated settlements of the Azerbaijan SSR where construction of personal flats is not prohibited under the legislation in force, on land belonging to cities and urban settlements; on village land not being used by collective farms, State farms or other agricultural enterprises; on land of the State reserve; and on land of the State forest fund that is not included in the greening zones of cities. Land shall be allocated for the mentioned purpose in accordance with the procedure provided under ... this Code.
Construction of personal flats in cities and workers’ settlements shall be carried out on empty areas which do not require expenditure for their use or technical preparation and, as a rule, near railroads and motorways which provide regular passenger communication, in the form of stand-alone residential districts or settlements.”
3. The 1983 Housing Code
91. Article 10.3 of the Housing Code read as follows:
“Citizens have the right to a house as personal property in accordance with the legislation of the USSR and the Azerbaijan SSR.”
4. The 1985 Instructions on Rules of Registration of Housing Facilities
92. The 1985 Instructions, in Article 2, listed the documents that served as evidence of title to a residential house. The Instructions were approved by the USSR Central Statistics Department through Order no. 380 of 15 July 1985. Article 2.1 listed the various types of documents constituting primary evidence of title. Article 2.2 stated that, if the primary evidence was missing, title could be shown indirectly through the use of other documents, including
“inventory-technical documents where they contain an exact reference to possession by the owner of duly formalised documents certifying his or her right to the residential house”.
B. The laws of Azerbaijan
93. Following independence, Azerbaijan enacted, on 9 November 1991, laws concerning property which, for the first time, referred to land as being the object of private ownership. However, detailed rules on the privatisation of land allotted to citizens were only introduced later, by the 1996 Law on land reform. The applicants, having left Lachin in 1992, could not have applied to become owners of the land that they had used.
1. The 1991 Law on property
94. The 1991 Law on property in Azerbaijan came into force on 1 December 1991. It stated, inter alia, the following.
Article 21
Objects of proprietary rights of the citizen
“1. A citizen may possess:
– plots of land;
– houses, apartments, country houses, garages, domestic appliances and items for private use;
– shares, bonds and other securities;
– mass-media facilities;
– enterprises and property complexes for the production of goods destined for the consumer, social and cultural markets, with the exception of certain types of property, which, by law, cannot be owned by citizens for reasons of State or public security or due to international obligations.
...
5. A citizen who owns an apartment, residential house, country house, garage or other premises or structures has the right to dispose of this property of his own will: to sell, bequeath, give away, rent or take other action in so far as it is not in contravention of the law.”
2. The 1992 Land Code
95. The new Land Code, which came into force on 31 January 1992, contained the following provisions.
Article 10
Private ownership of plots of land
“Plots of land shall be allocated for private ownership to Azerbaijani citizens in accordance with requests by the local executive authorities based on decisions of a district or city Soviet of People’s Deputies for the purposes mentioned below:
(1) for persons permanently residing on the territory in order to construct private houses and subsidiary constructions as well as for the establishment of private subsidiary agriculture;
(2) for farming activities and activities of other organisations involved in the production of agricultural products for sale;
(3) for the construction of private and collective country houses and private garages within the bounds of cities;
(4) for construction connected to business activities;
(5) for traditional ethnic production activities.
Under the legislation of Azerbaijan, plots of land may be allocated for private ownership to citizens for other purposes.”
Article 11
Conditions for allocation of plots of land for private ownership
“For the purposes stipulated in Article 10 of this Code, the right of ownership over a plot of land shall be granted free of charge.
Plots of land allocated to citizens for their private houses, country houses and garages before the date of entry into force of this Code shall be transferred into their name.
The right of private ownership or lifetime inheritable possession over a plot of land cannot be granted to foreign citizens or to foreign legal entities.
A plot of land shall not be returned to the former owners and their heirs. They may obtain a right of ownership over the plot of land on the basis provided for in this Code.”
Article 23
Allocation of plots of land
“Plots of land shall be allocated to citizens, enterprises and organisations for their ownership, possession, use or rent by a decision of a district or city Soviet of People’s Deputies, pursuant to the land-allocation procedure and in accordance with land-utilisation documents.
The designated purpose of a plot of land shall be indicated in the land-allocation certificate.
The procedure for lodging and examining a request for the allocation or seizure of a plot of land, including the seizure of a plot of land for State or public needs, shall be determined by the Cabinet of Ministers of Azerbaijan.
Citizens’ requests for the allocation of plots of land shall be examined within a period of no longer than one month.”
Article 30
Documents certifying land-ownership rights, rights of possession and
perpetual use of land
“The ownership rights to land and rights of possession and perpetual use of land shall be certified by a State certificate issued by a district or city Soviet of People’s Deputies.
The form of the mentioned State certificate shall be approved by the Cabinet of Ministers of the Republic of Azerbaijan.”
Article 31
Formalisation of the right of temporary use of land
“A right of temporary use of land, including a right given in accordance with rental terms, shall be documented by means of an agreement and a certificate. These documents shall be registered by a district or city Soviet of People’s Deputies and shall be issued to the land user. The form of the agreement and the certificate shall be approved by the Cabinet of Ministers of the Republic of Azerbaijan.”
Article 32
Grounds for termination of land-ownership rights, rights of possession
and use of land and rights to rent land
“The district or city Soviet of People’s Deputies which has provided an ownership right over a plot or a part of a plot of land, rights of possession and use of land or a right to rent it shall terminate these rights in the following cases:
(1) voluntary surrender or alienation of the plot of land by its owner;
(2) expiry of the period for which the plot of land was provided;
(3) termination of activities of an enterprise, agency, organisation or a peasant farm;
(4) use of the land for purposes other than its designated purpose;
(5) termination of the employment relationship on the basis of which a land allotment had been provided, except for cases provided by law;
(6) failure to comply with the terms of a rental agreement;
(7) failure to pay the land tax or a rent prescribed by the legislation or by a land-rental agreement for two consecutive years, without a good reason;
(8) failure to use, for one year and without a good reason, a plot of land allocated for agricultural production, or failure to use, for two years and without a good reason, a plot of land allocated for non-agricultural production;
(9) necessity to seize plots of land for State or public needs;
(10) transfer of the ownership right over buildings or structures or transfer of a right of operational management over them;
(11) death of the possessor or user.
The legislation of the Republic of Azerbaijan may provide for other grounds for the termination of an ownership right over a plot of land, rights of possession and use of land or a right to rent it.”
IV. RELEVANT INTERNATIONAL LAW
96. Article 42 of the Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (“the 1907 Hague Regulations”), defines belligerent occupation as follows.
“Territory is considered occupied when it is actually placed under the authority of the hostile army.
The occupation extends only to the territory where such authority has been established and can be exercised.”
Accordingly, occupation within the meaning of the 1907 Hague Regulations exists when a State exercises actual authority over the territory, or part of the territory, of an enemy State.[3] The requirement of actual authority is widely considered to be synonymous to that of effective control.
Military occupation is considered to exist in a territory, or part of a territory, if the following elements can be demonstrated: the presence of foreign troops, which are in a position to exercise effective control without the consent of the sovereign. According to widespread expert opinion, physical presence of foreign troops is a sine qua non requirement of occupation[4], that is, occupation is not conceivable without “boots on the ground”, therefore forces exercising naval or air control through a naval or air blockade do not suffice[5].
97. The rules of international humanitarian law do not explicitly address the issue of preventing access to homes or property. However, Article 49 of Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949 (“the Fourth Geneva Convention”) regulates issues of forced displacement in or from occupied territories. It provides as follows.
“Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.
Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.
The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.
The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place.
The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand.
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
Article 49 of the Fourth Geneva Convention applies in occupied territory, while there are no specific rules regarding forced displacement on the territory of a party to the conflict. Nonetheless, the right of displaced persons “to voluntary return in safety to their homes or places of habitual residence as soon as the reasons for their displacement cease to exist” is regarded as a rule of customary international law (see Rule 132 in Customary International Humanitarian Law by the International Committee of the Red Cross (ICRC)[6]) that applies to any kind of territory.
V. RELEVANT UNITED NATIONS AND COUNCIL OF EUROPE MATERIAL
A. United Nations
98. The UN Principles on Housing and Property Restitution for Refugees and Displaced Persons (Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, 28 June 2005, E/CN.4/Sub.2/2005/17, Annex), known as the Pinheiro Principles, are the most complete standards on the issue. The aim of these principles, which are grounded within existing international human rights and humanitarian law, is to provide international standards and practical guidelines to States, UN agencies and the broader international community on how best to address the complex legal and technical issues surrounding housing and property restitution.
They provide, inter alia, as follows.
2. The right to housing and property restitution
“2.1 All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing, land and/or property that is factually impossible to restore as determined by an independent, impartial tribunal.
2.2 States shall demonstrably prioritize the right to restitution as the preferred remedy for displacement and as a key element of restorative justice. The right to restitution exists as a distinct right, and is prejudiced neither by the actual return nor non-return of refugees and displaced persons entitled to housing, land and property restitution.”
3. The right to non-discrimination
“3.1 Everyone has the right to be protected from discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, disability, birth or other status.
3.2 States shall ensure that de facto and de jure discrimination on the above grounds is prohibited and that all persons, including refugees and displaced persons, are considered equal before the law.”
12. National procedures, institutions and mechanisms
“12.1 States should establish and support equitable, timely, independent, transparent and non-discriminatory procedures, institutions and mechanisms to assess and enforce housing, land and property restitution claims. ...
...
12.5 Where there has been a general breakdown in the rule of law, or where States are unable to implement the procedures, institutions and mechanisms necessary to facilitate the housing, land and property restitution process in a just and timely manner, States should request the technical assistance and cooperation of relevant international agencies in order to establish provisional regimes for providing refugees and displaced persons with the procedures, institutions and mechanisms necessary to ensure effective restitution remedies.
12.6 States should include housing, land and property restitution procedures, institutions and mechanisms in peace agreements and voluntary repatriation agreements. ...”
13. Accessibility of restitution claims procedures
“13.1 Everyone who has been arbitrarily or unlawfully deprived of housing, land and/or property should be able to submit a claim for restitution and/or compensation to an independent and impartial body, to have a determination made on their claim and to receive notice of such determination. States should not establish any preconditions for filing a restitution claim.
...
13.5 States should seek to establish restitution claims-processing centres and offices throughout affected areas where potential claimants currently reside. In order to facilitate the greatest access to those affected, it should be possible to submit restitution claims by post or by proxy, as well as in person. ...
...
13.7 States should develop restitution claims forms that are simple and easy to understand ...
...
13.11 States should ensure that adequate legal aid is provided, if possible free of charge ...”
15. Housing, land and property records and documentation
“...
15.7 States may, in situations of mass displacement where little documentary evidence exists as to ownership or rights of possession, adopt the conclusive presumption that persons fleeing their homes during a given period marked by violence or disaster have done so for reasons related to violence or disaster and are therefore entitled to housing, land and property restitution. In such cases, administrative and judicial authorities may independently establish the facts related to undocumented restitution claims.
...”
21. Compensation
“21.1 All refugees and displaced persons have the right to full and effective compensation as an integral component of the restitution process. Compensation may be monetary or in kind. States shall, in order to comply with the principle of restorative justice, ensure that the remedy of compensation is only used when the remedy of restitution is not factually possible, or when the injured party knowingly and voluntarily accepts compensation in lieu of restitution, or when the terms of a negotiated peace settlement provide for a combination of restitution and compensation.
...”
B. Council of Europe
99. Council of Europe bodies have repeatedly addressed issues of the restitution of property to internally displaced persons (IDPs) and refugees. The following Resolutions and Recommendations are of particular relevance in the context of the present case.
1. Parliamentary Assembly of the Council of Europe (PACE) Resolution 1708 (2010) on solving property issues of refugees and displaced persons
100. The Parliamentary Assembly noted in paragraph 2 that as many as 2.5 million refugees and IDPs faced situations of displacement in Council of Europe member States, in particular in the North and South Caucasus, the Balkans and the eastern Mediterranean, and that displacement was often protracted with affected persons being unable to return to or to access their homes and land since the 1990s and earlier. It underlined the importance of restitution as follows.
“3. The destruction, occupation or confiscation of abandoned property violate the rights of the individuals concerned, perpetuate displacement and complicate reconciliation and peace-building. Therefore, the restitution of property – that is the restoration of rights and physical possession in favour of displaced former residents – or compensation, are forms of redress necessary for restoring the rights of the individual and the rule of law.
4. The Parliamentary Assembly considers that restitution is the optimal response to the loss of access and rights to housing, land and property because, alone among forms of redress, it facilitates choice between three ‘durable solutions’ to displacement: return to one’s original home in safety and dignity; local integration at the site of displacement; or resettlement either at some other site within the country or outside its borders.”
The Parliamentary Assembly then referred to Council of Europe human rights instruments, in particular the European Convention on Human Rights, the European Social Charter and the Framework Convention for the Protection of National Minorities, as well as to the UN Pinheiro Principles, and called on member States to take the following measures.
“9. In the light of the above, the Assembly calls on member states to resolve post-conflict housing, land and property issues of refugees and IDPs, taking into account the Pinheiro Principles, the relevant Council of Europe instruments and Recommendation Rec(2006)6 of the Committee of Ministers.
10. Bearing in mind these relevant international standards and the experience of property resolution and compensation programmes carried out in Europe to date, member states are invited to:
10.1. guarantee timely and effective redress for the loss of access and right to housing, land and property abandoned by refugees and IDPs without regard to pending negotiations concerning the resolution of armed conflicts or the status of a particular territory;
10.2. ensure that such redress takes the form of restitution in the form of confirmation of the legal rights of refugees and displaced persons to their property and restoration of their safe physical access to, and possession of, such property. Where restitution is not possible, adequate compensation must be provided, through the confirmation of prior legal rights to property and the provision of money and goods having a reasonable relationship to their market value or other forms of just reparation;
10.3. ensure that refugees and displaced persons who did not have formally recognised rights prior to their displacement, but whose enjoyment of their property was treated as de facto valid by the authorities, are accorded equal and effective access to legal remedies and redress for their dispossession. This is particularly important where the affected persons are socially vulnerable or belong to minority groups;
...
10.5. ensure that the absence from their accommodation of holders of occupancy and tenancy rights who have been forced to abandon their homes shall be deemed justified until the conditions that allow for voluntary return in safety and dignity have been restored;
10.6. provide rapid, accessible and effective procedures for claiming redress. Where displacement and dispossession have taken place in a systematic manner, special adjudicatory bodies should be set up to assess claims. Such bodies should apply expedited procedure that incorporate relaxed evidentiary standards and facilitated procedure. All property types relevant to the residential and livelihood needs of displaced persons should be within their jurisdiction, including homes, agricultural land and business properties;
10.7. secure the independence, impartiality and expertise of adjudicatory bodies including through appropriate rules on their composition that may provide for the inclusion of international members. ...”
2. PACE Resolution 1497 (2006) on refugees and displaced persons in Armenia, Azerbaijan and Georgia
101. In this Resolution, the Parliamentary Assembly notably called on Armenia, Azerbaijan and Georgia
“12.1. to focus all their efforts on finding a peaceful settlement of the conflicts in the region with a view to creating conditions for the voluntary return of refugees and displaced persons to their places of origin, safely and with dignity;
...
12.4. to make the return of the displaced persons a priority and do everything possible in their negotiations so as to enable these people to return in safety even before an overall settlement;
...
12.15. to develop practical co-operation as regards the investigation of the fate of missing persons and to facilitate the return of identity documents and the restitution of property in particular, making use of the experience of handling similar problems in the Balkans.”
3. Recommendation Rec(2006)6 of the Committee of Ministers to member states on internally displaced persons
102. The Committee of Ministers recommended notably the following:
“8. Internally displaced persons are entitled to the enjoyment of their property and possessions in accordance with human rights law. In particular, internally displaced persons have the right to repossess the property left behind following their displacement. If internally displaced persons are deprived of their property, such deprivation should give rise to adequate compensation;”
THE LAW
I. INTRODUCTION
103. By its decision of 14 December 2011, the Court declared the applicants’ complaints admissible. It also examined the six preliminary objections raised by the Government under Article 35 of the Convention. Three of them – concerning the question whether the matter had already been submitted to another procedure of international investigation or settlement, the lack of jurisdiction ratione temporis and the failure to respect the six-month rule – were rejected. The other three objections were joined to the merits and will be examined below in the following order: exhaustion of domestic remedies, the applicants’ victim status, and the Government’s jurisdiction over the territory in question.
II. EXHAUSTION OF DOMESTIC REMEDIES
A. The parties’ submissions
1. The applicants
104. The applicants submitted that the Armenian authorities had prevented them as displaced persons from returning to their homes and that this reflected an acknowledged official policy and, accordingly, an administrative practice. In these circumstances, they did not have access to any domestic remedies.
105. Moreover, there were no remedies known to them – in Armenia or in the “NKR” – that could be effective in respect of their complaints. Allegedly, the lack of domestic remedies was most clearly shown by the international discussions regarding the right of return of internally displaced persons. Constituting one of the major differences between the parties to the ongoing Minsk Group negotiations, this issue remained unresolved. The applicants had not lodged any “applications” to return and questioned whether there was a forum to which such a request could be submitted. Allegedly, a request would in any event be entirely fruitless. Furthermore, given Armenia’s denial of any involvement in the events relating to the conflict in Nagorno-Karabakh, the applicants asserted that it would be contradictory to have expected them to have approached the Armenian authorities.
106. The applicants further maintained that the Government bore the burden of proof to show that a remedy existed and that it was effective both in theory and in practice and, in particular, that it had been successfully used by litigants in a position similar to theirs. They argued that the Government had failed to discharge this burden. More specifically, none of the examples of cases given by the Government in their observations to the Chamber in July 2007 related to the right to return to enjoy properties or private and family life. Only in their July 2012 observations had the Government pointed to some constitutional remedies in Armenia and the “NKR” and claimed that the applicants had always been able to enter the disputed territories, at least for the purpose of exercising their legal rights. Read in conjunction with the Government’s previous observations, where these remedies had not been mentioned and where the return of and compensation to displaced persons were conditioned on a comprehensive and final conflict-resolution agreement, the 2012 submissions lacked credibility. Furthermore, they had not contained any examples of redress actually offered to Azerbaijani nationals for breaches of the type of rights referred to in the present case.
2. The Government
107. The Government submitted that the applicants had failed to exhaust domestic remedies, as they had not shown that they had taken any steps to protect or restore their rights. In particular, the applicants had not applied to any judicial or administrative body of the Republic of Armenia. Furthermore, maintaining that the territories in question were under the jurisdiction and control of the “NKR”, the Government claimed that the “NKR” had all the judicial and administrative bodies capable of protecting the rights of individuals. The applicants had purportedly been able to obtain visas to both Armenia and the “NKR” to seek legal advice, even free of charge from “public defender” services, and bring restitution or compensation claims against the Armenian army and authorities or the “NKR” before independent and unbiased courts. As far as Armenia was concerned, this opportunity had existed ever since the ratification of the Convention in April 2002. The positions taken in the Minsk Group negotiations concerned the return of all displaced persons and were of no relevance to the situation of individuals who wished to exercise their legal rights.
108. Moreover, the Government argued that the constitutions and other laws in Armenia and the “NKR”, in particular their Land Codes and Civil Codes, protected individuals’ right to property, provided for the restitution of or compensation for dispossessed land and made no distinction between the rights of nationals and foreigners.
109. In order to show the effectiveness of Armenian remedies for people of Kurdish or Azeri ethnicity, in June 2007 the Government submitted three court cases: one concerned the amnesty granted to a convicted person, allegedly of Azerbaijani nationality, one related to the friendly settlement reached between a Kurdish person and his employer in a dispute regarding unpaid wages, and one concerned the dispute between another Kurdish person and a local Armenian administration over the prolongation of a land-lease contract. Furthermore, the Government submitted three cases examined by “NKR” courts to demonstrate that there were effective judicial remedies in that region: two concerned the criminal convictions of persons of Armenian ethnicity living in the “NKR” and the remaining one concerned an inheritance dispute between two private individuals, allegedly of Armenian ethnicity.
3. The Azerbaijani Government, third-party intervener
110. According to the Azerbaijani Government, the respondent Government had failed to fulfil their obligation to specify which remedies existed in either Armenia or the “NKR” that could be effective in the circumstances, and had further failed to provide any example of a displaced Azerbaijani national having had successful recourse to such claimed, albeit totally unspecified, remedies. In this connection, the Azerbaijani Government asserted that the Land Codes of Armenia and the “NKR” did not provide any rules or mechanisms by virtue of which persons displaced in circumstances similar to the applicants’ could obtain restitution of or compensation for their dispossessed property.
111. Furthermore, in the light of the general context, there was allegedly no need to exhaust domestic remedies due to administrative practices and special circumstances. Reference was made, inter alia, to the continuing tension and hostility in the region, the application of martial law within Nagorno-Karabakh and the other occupied territories, and the deliberate policy of encouraging Armenian settlers to move into, in particular, the district of Lachin.
112. The Azerbaijani Government further asserted that any remedies that the respondent Government would argue were available before the Armenian courts and organs could not by definition be effective in view of Armenia’s declared view that the “NKR” was an independent State within whose jurisdiction and control Lachin was to be found. Moreover, the territorial framework relevant to the “NKR” “Declaration of Independence” in September 1991 excluded the other areas of Azerbaijan occupied later, including Lachin, over which, accordingly, the “NKR” courts were constitutionally incapable of exercising jurisdiction.
B. The Court’s assessment
1. Admissibility of additional submissions
113. It should first be noted that, on 20 January 2014 – two weeks after the extended time-limit set by the Court for the submission of additional documentary material – the Government presented several documents, including two judgments which purportedly acknowledged the ownership rights to private houses and the surrounding land situated in the disputed territories of two displaced plaintiffs of Azerbaijani nationality. The judgments had been issued in 2003 and 2005 by the “First Instance Court of the Republic of Nagorno-Karabakh”.
114. On 22 January 2014 the President of the Court, after consulting the Grand Chamber, decided, in accordance with Rules 38 § 1 and 71 § 1 of the Rules of Court, that the above-mentioned documents should not be included in the case file, because of their late submission. The Government had not given a satisfactory explanation as to why the documents could not have been filed in time. The Court notes, in this connection, that the Government were invited, on 8 June 2006, to submit observations on the case and that they, both then and later in the proceedings, were asked to specifically address the question of the exhaustion of remedies. No mention was made of the 2003 and 2005 judgments on any of these occasions. Consequently, these documents will not be taken into account.
2. General principles on exhaustion of domestic remedies
115. The Court reiterates that it is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. The Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996‑IV). The Court cannot emphasise enough that it is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdiction (see Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 and 7 others, § 69, ECHR 2010, and Kazali and Others v. Cyprus (dec.), nos. 49247/08 and 8 others, § 132, 6 March 2012).
116. The Court has set out the general principles pertaining to the exhaustion of domestic remedies in a number of judgments. In Akdivar and Others (cited above), it held as follows (further case references deleted).
“65. The Court recalls that the rule of exhaustion of domestic remedies referred to in Article [35] of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity –, that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights ...
66. Under Article [35] normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness ...
Article [35] also requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used ...
67. However, there is, as indicated above, no obligation to have recourse to remedies which are inadequate or ineffective. In addition, according to the ‘generally recognised rules of international law’ there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal ... The rule is also inapplicable where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance by the State authorities has been shown to exist, and is of such a nature as to make proceedings futile or ineffective ...
68. In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement ... One such reason may be constituted by the national authorities remaining totally passive in the face of serious allegations of misconduct or infliction of harm by State agents, for example where they have failed to undertake investigations or offer assistance. In such circumstances it can be said that the burden of proof shifts once again, so that it becomes incumbent on the respondent Government to show what they have done in response to the scale and seriousness of the matters complained of.
69. The Court would emphasise that the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article [35] must be applied with some degree of flexibility and without excessive formalism ... It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case ... This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants.”
3. Application of these principles to the facts of the case
117. While maintaining that Armenia has no jurisdiction over Nagorno-Karabakh and, in particular, the district of Lachin, the Government claimed that the applicants could have been afforded redress by judicial and administrative bodies in Armenia and the “NKR”. They referred to provisions in the laws of the two entities concerning land disputes, including issues of restitution and compensation in case of someone else’s illegal possession. They also presented statements by domestic judges and officials to the effect that the courts of Armenia and the “NKR” are independent and impartial and are ready to adjudicate cases brought by Azerbaijani citizens without discrimination. The applicants and the Azerbaijani Government, for their part, asserted that the laws of Armenia and the “NKR” did not provide any redress for displaced persons who had been dispossessed of their property in circumstances similar to those of the applicants.
118. The Court finds that, for the question of exhaustion of domestic remedies, it need not determine whether Armenia can be considered to have jurisdiction over the area in question and whether such jurisdiction would have an effect on the operation of its domestic remedies on the issues of the restitution of or compensation for property situated in the disputed territories. The reason for this is that the Government have not shown that there is a remedy – in Armenia or in the “NKR” – capable of providing redress in respect of the applicant’s complaints. The legal provisions referred to by them are of a general nature and do not address the specific situation of dispossession of property as a result of armed conflict, or in any other way relate to a situation similar to that of the applicants. As regards the domestic judgments submitted by way of example in June 2007 (see paragraph 109 above), none of them relate to claims concerning the loss of homes or property by persons displaced in the context of the Nagorno-Karabakh conflict.
119. It should also be noted that Armenia has denied that its armed forces or other authorities have been involved in the events giving rise to the complaints in the present case, or that Armenia exercises – or has at any point in time exercised – jurisdiction over Nagorno-Karabakh and the surrounding territories. Given such a denial of involvement or jurisdiction, it would not be reasonable to expect the applicants to bring claims for restitution or compensation before the Armenian courts and authorities. Regard must further be had to the political and general context. As a consequence of the war, virtually all Azerbaijanis have left the disputed territories. No political solution of the conflict has been reached. Rather, the hostile rhetoric between the leaders of Armenia and Azerbaijan appears to have intensified, ceasefire breaches are recurrent and the military build-up in the region has escalated in recent years. In these circumstances, it is not realistic that any possible remedy in the unrecognised “NKR” entity could in practice afford displaced Azerbaijanis effective redress.
120. In these circumstances, the Court considers that the Government have failed to discharge the burden of proving the availability to the applicants of a remedy capable of providing redress in respect of their Convention complaints and offering reasonable prospects of success. The Government’s objection of the non-exhaustion of domestic remedies is therefore dismissed.
III. THE APPLICANTS’ VICTIM STATUS
A. The parties’ submissions
1. The applicants
121. The applicants maintained that they had submitted documentation with their application and their subsequent observations in the case that constituted sufficient proof of their identity and of the fact that they owned or had the right to use identifiable property in the territory in question and that they had been residing there when they had had to flee in May 1992. They referred, inter alia, to the technical passports, statements by witnesses and invoices for building materials and building subsidies. As regards the technical passports, the applicants maintained that they, in all details, complied with the formal requirements under the domestic law in force at the material time. They explained that the discrepancies between the statements made in the application form and the specifications contained in the passports were due to the statements given to their representative in difficult circumstances in Baku in early 2005 during a brief meeting. The original statements were made from memory, without access to documents, and it was therefore the information contained in the passports that was correct and should be taken into account. The applicants further asserted that the passports constituted secondary evidence of their possessions. In addition, the sixth applicant had submitted primary evidence in the form of an abstract from the session protocol of the Soviet of People’s Deputies of Lachin District of 29 January 1974 that contained the decision to allocate land to him. When they fled, they had not had the time to take all of their papers with them. Furthermore, there had not been a centralised land register at the time from which they could have obtained further documents.
122. The applicants claimed that, under the 1970 Land Code and the 1983 Housing Code of the Azerbaijan SSR, still in force at the time of their flight, a citizen had a right of ownership to his individual house and an inheritable right to use a plot of land in line with the purposes for which it had been allocated. Both rights allegedly constituted possessions within the meaning of Article 1 of Protocol No. 1. Moreover, the 1991 Law on property in Azerbaijan made reference to a land plot as the object of individual ownership and thus gave the applicants a legitimate expectation of becoming owners of land.
2. The Government
123. The Government contended that, with the exception of the sixth applicant, the applicants had not submitted any evidence with their application that could prove that they in fact had any property, let alone that the property was located on the territory claimed and that they had owned it at the relevant time. In the Government’s view, it was remarkable that, although they all claimed to have fled empty-handed, the technical passports of the other five applicants had later appeared out of nowhere. Furthermore, the statements of friends and neighbours submitted to the Court amounted to no more than hearsay. In respect of all the applicants, the Government maintained that they had failed to prove “beyond reasonable doubt” that they were the persons they claimed to be, that they had resided in the territories specified by them or that they owned the property in question. In particular, the documents provided by them contained numerous contradictions and inaccuracies. For instance, the second applicant had first claimed to have lived in the village of Chirag and had then changed this to Chiragli. Moreover, most of the technical passports submitted as proof of ownership gave different figures with regard to the size of the houses to the figures stated by the applicants themselves. The Government also claimed that a technical passport is a document showing the technical condition of a building and nothing else, unless its origin and provenance is established.
124. The Government further questioned whether the applicants had ever held a right to the alleged properties that had been recognised under the law in force in 1992 or certified by the appropriate authority. In particular, under the socialist system of the USSR before 1991, land was under the exclusive ownership of the State. While the 1991 Law on property recognised the possibility of private ownership, it did not transfer ownership of land occupied by individuals to them. With respect to individual land users and lessees, the legislation set out that their rights were formalised through a certificate, which was registered in a land register kept by the local Soviet of People’s Deputies. Thus, no rights to land could be asserted without such a registered certificate. Furthermore, the Azerbaijani 1992 Land Code stipulated that the rights of a user or lessee could be extinguished following a failure to use the land for a period of two years. As the applicants had not returned to the district of Lachin since 1992, the Government presumed that their alleged rights had been terminated before Armenia became subject to the jurisdiction of the Court in 2002. Furthermore, the applicants’ claimed legitimate expectation to become owners of land was no longer a realistic expectation in 2002. Furthermore, before that date, the applicants’ alleged property had been allocated to other individuals, with their names recorded on the land register in accordance with the laws of the “NKR”. Thus, the applicants had no “existing possessions” but were merely claimants seeking to have their property restored or to receive compensation. The Government maintained that no domestic legislation or judicial decision existed which gave rise to a legitimate expectation of such restitution or compensation. However, in the same observations, the Government stated that the “NKR” had not adopted any legal act that deprived the applicants of the right to enter the territory of Lachin or of the right to peacefully enjoy their property.
3. The Azerbaijani Government, third-party intervener
125. The Azerbaijani Government pointed out that almost all displaced persons had had to flee their homes in the occupied territories quickly, without having had the time to collect documents. At the material time, it was impossible to obtain property documents as the records had been kept by the local authorities, and their archives had most likely been destroyed. Nevertheless, a technical passport was classified as an “inventory-technical” document that served to indirectly establish the right to an individual house where the original document was missing. This document constituted secondary evidence of title to a house or a plot of land if its text directly referred to documents confirming the property rights. Such a reference was included in the applicants’ technical passports. Thus, considered together with the witness statements and building invoices submitted, they demonstrated that the applicants owned individual houses and had the right to use the land plots allotted to them. These rights still existed.
126. The Azerbaijani Government further stated that, at the time of the applicants’ flight, private ownership of individual houses was protected by the laws of the Azerbaijan SSR, as in force at the material time. No private ownership existed, however, in regard to land, which was exclusively owned by the State. All land transactions were prohibited, but plots of land were allotted by decision of the local authority, the Soviet of People’s Deputies, to citizens for their use for a definite or indefinite period of time, free of charge. The right of use, which was an inheritable title, was granted for purposes such as individual housing, namely the construction of privately owned houses, as well as pasture, haymaking and farming. Furthermore, the 1991 Law on property in Azerbaijan, while not yet enforceable at the relevant time, had added a legitimate expectation for the applicants to become owners of land.
B. The Court’s assessment
127. The examination of the issue of the applicants’ victim status is twofold. First, it must be assessed whether the applicants have submitted sufficient proof of their personal identity and former residence as well as the existence of the assets they allegedly left behind. If so, it needs to be determined whether these assets constitute “possessions” and help create “homes” under the Convention. For the determination of the second issue, the domestic legal classification or significance of these terms is of importance.
1. General principles on assessment of claims relating to property and homes of displaced persons
128. The Court has previously dealt with cases concerning the property and housing rights of persons who have been displaced as a result of an international or internal armed conflict. The issues have arisen in the context of the occupation of northern Cyprus, the actions of the security forces in Turkey and Russia, and in some other conflict situations.
129. The Court examined for the first time the rights of displaced persons to respect for their homes and property in Loizidou v. Turkey ((merits), 18 December 1996, Reports 1996-VI). The applicant claimed to be the owner of a number of plots of land in northern Cyprus. The Turkish Government did not call into question the validity of the applicant’s title, but argued that she had lost ownership of the land by virtue of Article 159 of the 1985 Constitution of the “Turkish Republic of Northern Cyprus” (the “TRNC”) which declared all abandoned immovable properties to be the property of the “TRNC”. The Court, having regard to the lack of recognition of the “TRNC” as a State by the international community, did not attribute any legal validity to the provision and considered that the applicant could not be deemed to have lost title to her property as a result of it (§§ 42-47).
130. In a number of cases related to the above-mentioned conflict, the Court has established the applicants’ “possession” within the meaning of Article 1 of Protocol No. 1 on the basis of prima facie evidence which the Government failed convincingly to rebut, including copies of original title deeds, registration certificates, purchase contracts and affirmations of ownership issued by the Republic of Cyprus. As explained by the applicant in Solomonides v. Turkey (no. 16161/90, § 31, 20 January 2009), his titles of ownership had been registered at the District Lands Office. However, at the time of the Turkish military intervention he had been forced to flee and had been unable to take with him the title deeds. The Cypriot authorities had reconstructed the Land Books and had issued certificates of affirmation of title. These certificates were the best evidence available in the absence of the original records or documents. It is noteworthy that in Saveriades v. Turkey (no. 16160/90, 22 September 2009) the reasons why the applicant could not submit the original title deeds were specifically taken into account. The applicant argued that he had been forced to leave his premises, where the documents were held, in great haste and had subsequently been unable to return there or otherwise retrieve the title deeds. The Court accepted that the documents submitted by the applicant (such as a sale contract, ownership certificates and a building permit) provided prima facie evidence that he had a title of ownership over the properties in issue, and continued (§ 18):
“... As the respondent Government failed to produce convincing evidence in rebuttal, and taking into account the circumstances in which the applicant had been compelled to leave northern Cyprus, the Court considers that he had a ‘possession’ within the meaning of Article 1 of Protocol No. 1.”
131. In Doğan and Others v. Turkey (nos. 8803/02 and 14 others, ECHR 2004-VI) which concerned the forced eviction of villagers in the state-of-emergency region in south-east Turkey and the refusal to let them return for several years, the Government raised the objection that some of the applicants had not submitted title deeds attesting that they had owned property in the village in question. The Court considered that it was not necessary to decide whether or not in the absence of title deeds the applicants had rights of property under domestic law. The question was rather whether the overall economic activities carried out by the applicants constituted “possessions” coming within the scope of Article 1 of Protocol No. 1. Answering the question in the affirmative, it stated as follows (§ 139):
“... [T]he Court notes that it is undisputed that the applicants all lived in Boydaş village until 1994. Although they did not have registered property, they either had their own houses constructed on the lands of their ascendants or lived in the houses owned by their fathers and cultivated the land belonging to the latter. The Court further notes that the applicants had unchallenged rights over the common lands in the village, such as the pasture, grazing and the forest land, and that they earned their living from stockbreeding and tree-felling. Accordingly, in the Court’s opinion, all these economic resources and the revenue that the applicants derived from them may qualify as ‘possessions’ for the purposes of Article 1.”
132. The autonomous meaning of the concept of “possessions” has been proclaimed in many judgments and decisions of the Court. In Öneryıldız v. Turkey ([GC], no. 48939/99, § 124, ECHR 2004-XII), it was summarised as follows.
“The Court reiterates that the concept of ‘possessions’ in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to ownership of physical goods and is independent from the formal classification in domestic law: the issue that needs to be examined is whether the circumstances of the case, considered as a whole, may be regarded as having conferred on the applicant title to a substantive interest protected by that provision ... Accordingly, as well as physical goods, certain rights and interests constituting assets may also be regarded as ‘property rights’, and thus as ‘possessions’ for the purposes of this provision ... The concept of ‘possessions’ is not limited to ‘existing possessions’ but may also cover assets, including claims, in respect of which the applicant can argue that he has at least a reasonable and ‘legitimate expectation’ of obtaining effective enjoyment of a property right ...”
In that case, the Court considered that a dwelling illegally erected on public land next to a rubbish tip, where the applicant and his family had lived undisturbed, albeit unauthorised, while paying council tax and public-service charges, represented a proprietary interest which, de facto, had been acknowledged by the authorities and was of a sufficient nature to constitute a possession within the meaning of Article 1 of Protocol No. 1.
133. The question whether the applicants had substantiated their claim under Article 1 of Protocol No. 1 has also arisen in a number of cases against Russia where the applicants’ houses or other property were destroyed or damaged as a result of aerial attacks on the towns where they lived. For instance, in Kerimova and Others v. Russia (nos. 17170/04 and 5 others, §§ 292-93, 3 May 2011), the Court accepted the claim of ownership by some of the applicants on the basis of extracts from a housing inventory issued by the town administration after the attack which showed that the applicants were the owners of their houses. As regards the applicants who had submitted no proof of title, the Court established their property right on the basis of other evidence, such as a certificate of residence issued by the town administration. The Court also considered it likely that any documents confirming the applicants’ title to the houses had been destroyed during the attack.
134. In situations where it has been established that the applicant was the owner of a house, the Court has not required further documentary evidence of his or her residence there to show that the house constituted a “home” within the meaning of Article 8 of the Convention. For example, in Orphanides v. Turkey (no. 36705/97, § 39, 20 January 2009), it stated as follows:
“The Court notes that the Government failed to produce any evidence capable of casting doubt upon the applicant’s statement that, at the time of the Turkish invasion, he was regularly residing in Lapithos and that his house was treated by him and his family as a home.”
135. However, if an applicant does not produce any evidence of title to property or of residence, his complaints are bound to fail (see, for example, Lordos and Others v. Turkey, no. 15973/90, § 50, 2 November 2010, where the Court declared a complaint incompatible ratione materiae in the absence of evidence of ownership; see also the conclusion as to some applicants in Kerimova and Others, cited above). In several cases the Court has reiterated that the applicants are required to provide sufficient prima facie evidence in support of their complaints. In Damayev v. Russia (no. 36150/04, §§ 108‑11, 29 May 2012), it considered that an applicant complaining of the destruction of his home should provide at least a brief description of the property in question. Since no documents or detailed claims were submitted, his complaint was found to be unsubstantiated. As further examples of prima facie evidence of ownership of or residence on property, the Court has mentioned documents such as land or property titles, extracts from land or tax registers, documents from the local administration, plans, photographs and maintenance receipts as well as proof of mail deliveries, statements of witnesses or any other relevant evidence (see, for instance, Prokopovich v. Russia, no. 58255/00, § 37, ECHR 2004-XI, and Elsanova v. Russia (dec.), no. 57952/00, 15 November 2005).
136. In sum, the Court’s case-law has developed a flexible approach regarding the evidence to be provided by applicants who claim to have lost their property and home in situations of international or internal armed conflict. The Court notes that a similar approach is reflected in Article 15 § 7 of the Pinheiro Principles (see paragraph 98 above).
2. Application of these principles to the facts of the case
(a) Proof of identity and place of residence
137. While the applicants, at the time of lodging the present application, did not submit documents showing their identity and place of residence, they did so following the Grand Chamber’s request in April 2010. The documents included their and their children’s birth certificates, marriage certificates, USSR passports, work records and extracts from military-service books (for details, see paragraphs 33-57 above). In the Court’s view, these documents demonstrate that all the applicants were born in the district of Lachin and that they lived and worked there, at least for major parts of their lives. Having regard to the applicant’s own statements – and in the absence of any evidence to the contrary – they must be deemed to have still lived there with their families at the time when they fled on 17 May 1992.
(b) Proof of possessions
138. The applicants claimed that they owned or had protected rights to land, houses and certain moveable property that they were forced to leave behind when they fled. It is not known whether any of the houses are still intact and the claimed moveable property is most certainly no longer in existence. Thus, what remain are mainly the plots of land.
139. Originally, only the sixth applicant submitted a document relating to property, a so-called technical passport. The other applicants presented such evidence only when they replied to the Government’s first observations. In addition to technical passports, they all submitted witness statements from former neighbours who affirmed that the applicants owned houses in the respective villages, as well as statements by representatives of an Azerbaijani administration for Lachin. The sixth applicant also presented a decision on land allocation taken by the Lachin District Soviet of People’s Deputies as well as invoices for animal feed, building materials and building subsidies.
140. The most significant pieces of evidence supplied by the applicants are the technical passports. Being official documents, they all contain drawings of houses, and state, among other things, their sizes, measurements and the number of rooms. The sizes of the plots of land in question are also indicated. The passports are dated between July 1985 and August 1990 and contain the applicants’ names. Moreover, it appears that the passports include references to the respective land allocation decisions.
141. Having regard to the submissions of the Azerbaijani Government, the Court considers that the applicants’ technical passports must be seen as “inventory-technical documents” constituting indirect evidence of title to houses and land which, in addition, conforms with Article 2.2 of the 1985 Instructions on Rules of Registration of Housing Facilities (see paragraph 92 above). Furthermore, the land-allocation decision supplied by the sixth applicant represents primary evidence under Article 2.1 of those Instructions. While the Government have contested the probative value of the passports, claiming that they show the technical condition of a building and nothing else, the Court notes that they do not simply contain specifications of the houses in question but also include the applicants’ names. In these circumstances, they provide such prima facie evidence of title to property that has been accepted by the Court in many previous cases.
142. It is noteworthy that, except for the fifth and sixth applicants, there are discrepancies between the applicants’ initial descriptions of their houses and the figures contained in the technical passports presented later in the proceedings. For example, the first applicant originally stated that he owned a 250 sq. m house. The technical passport submitted, however, concerns a house of a total area of 408 sq. m and 300 sq. m living area (and a 60 sq. m storehouse, not previously mentioned). Similarly, the fourth applicant originally claimed that his house had a 165 sq. m area, whereas the house described in the passport measures 448 sq. m in total and has a 223 sq. m living area (and a 75 sq. m storehouse, not previously mentioned). The applicants have stated that it is the information contained in the technical passports that is correct and that their original statements were made from memory at a brief meeting with their representative when they did not have access to the documents.
The Court can accept the applicants’ explanation: the discrepancies between their original statements and the technical passports are, in the circumstances, not of the nature to discredit the authenticity of the documents, in particular when the figures initially given by the applicants are compared with the living-area measurements specified in the passports.
143. The applicants have submitted further prima facie evidence in regard to property, including statements by former neighbours. In addition, the documents examined above in relation to the applicants’ identities and residence, which show that they resided in the district of Lachin, lend support to their property claims. Moreover, while all but the sixth applicant have failed to present title deeds or other primary evidence, regard must be had to the circumstances in which they were compelled to leave the district, abandoning it when it came under military attack. Accordingly, taking into account the totality of evidence presented, the applicants have sufficiently substantiated their claims that they were in possession of houses and land at the time of their flight.
(c) Whether the applicants’ rights fall under Article 1 of Protocol No. 1 and Article 8 of the Convention
144. It remains to be determined whether the applicants had – and still have – rights to property which are protected by Article 1 of Protocol No. 1 and whether the property, considered together with the other personal circumstances of the applicants, have constituted their homes within the meaning of Article 8 of the Convention. As has been mentioned above (see paragraph 132), the concept of “possessions” in Article 1 of Protocol No. 1 has an autonomous meaning and is not dependent on the formal classification in domestic law. However, when addressing this issue, it should first be established whether domestic law and practice conferred or acknowledged rights which are protected under the Convention.
145. First, it should be noted that, although the land legislation enacted shortly after Azerbaijan’s independence acknowledged for the first time the right of private ownership of land, a procedure whereby land could be privatised had not been introduced at the relevant time, that is, in May 1992. In any event, it is undisputed that no application had been made by the applicants to become owners of land. As, moreover, the rights acquired by individuals under the old legislation were not rescinded by the enactment of the 1991/92 property laws, the applicants’ legal rights to the houses and land that they possessed at the time of their flight must be assessed with reference to the laws of the Azerbaijan SSR.
146. Under the Soviet legal system, citizens had a right to own residential houses, but there was no private ownership of land, which instead was considered State property. For the Azerbaijan SSR (including Nagorno-Karabakh and the district of Lachin and the other surrounding territories now under occupation), these rules were laid down in the 1978 Constitution as well as the 1970 Land Code and the 1983 Housing Code. Article 10.3 of the Housing Code provided for the ownership of houses, and the Land Code, notably Articles 4, 25, 27 and 28, laid down the rules and procedures for the allocation of land to individuals for their use. Consequently, the houses that the applicants inhabited in the district of Lachin were part of their personal property, whereas they only had a “right of use” of the plots of land on which these houses stood. As has already been mentioned (see paragraph 138), the moveable property – livestock, carpets, cars – that the applicants claimed to have possessed (the rights to which were also protected by the laws of the Azerbaijan SSR) is likely to have been destroyed during the military attack on Lachin or in the subsequent years. It is further unclear whether their houses have been destroyed or are still partly or wholly intact. Consequently, it is of crucial importance to examine the significance of the “right of use”.
147. The “right of use” was the only title to land that an individual could acquire. Granted by the local Soviet of People’s Deputies, the right could be given for several different purposes, including pasture and farming and – most importantly in the context of the present case – the erection of a house. The beneficiaries were obliged to use the plots of land strictly for the purposes for which they had been allocated. The “right of use” was conferred indefinitely or for a temporary period. Thus, if the individual held an indefinite “right of use” and complied with the purpose specified, he or she could use the land for life. Moreover, the right was inheritable.
There is no doubt, therefore, that the “right of use” conferred on the applicants was a strong and protected right which represented a substantive economic interest. While there is no indication that the applicants’ rights were of a temporary nature, the Court notes, for the sake of completeness, that this conclusion is applicable to both indefinite and temporary “rights of use”. Having regard to the autonomous meaning of Article 1 of Protocol No. 1, the “right of use” of land thus constituted a “possession” under that provision. This conclusion applies also to the rights held by individuals to residential houses and moveable property.
148. In their observations submitted on 11 July 2012, the Government stated that the applicants’ rights to land would presumably have been terminated by virtue of Article 32 §§ 1 to 8 of the 1992 Land Code, as they had not returned to their land since May 1992 and had thus failed to use it for two successive years. The Government further claimed that, in any event, the land had been allocated to other individuals in accordance with the laws of the “NKR”. In support of the second claim, they submitted a number of “NKR” land-registry documents from 2000 and 2001.
In regard to the Government’s first contention, the Court notes that terminating land rights under Article 32 of the 1992 Land Code necessitated a decision to that effect by the local Soviet of People’s Deputies and, moreover, required that the failure to use the land was without good reason. The latter can hardly be said to be the case here in view of the military presence in the relevant territories since 1992/93. In these circumstances, the claim, which amounts to no more than speculation, must be rejected. As to the Government’s second contention, it is unclear to which land or possessors the submitted land-registry documents refer. Moreover, the claim seems to contradict the statement that the “NKR” had not adopted any legal act that deprived the applicants of the right to the peaceful enjoyment of their property. In any event, this issue has already been examined at the admissibility stage in regard to the Court’s jurisdiction ratione temporis following a similar claim by the Government. The claim was rejected on the following grounds (see Chiragov and Others v. Armenia (dec.), no. 13216/05, § 102, 12 February 2012):
“At a late stage of the proceedings, the Armenian Government introduced the claim that the authorities of the ‘NKR’, in 1998, had enacted a law on privatisation and a Land Code, which had extinguished the land rights of the applicants and other people who had fled the occupied territories. The texts of these laws have not been submitted to the Court. In any event, the Court notes that the ‘NKR’ is not recognised as a State under international law by any countries or international organisations. Against this background, the invoked laws cannot be considered legally valid for the purposes of the Convention and the applicants cannot be deemed to have lost their alleged rights to the land in question by virtue of these laws (see Loizidou (merits), cited above, §§ 42-47).”
149. In conclusion, at the time of their leaving the district of Lachin, the applicants held rights to land and houses which constituted “possessions” within the meaning of Article 1 of Protocol No. 1. There is no indication that those rights have been extinguished since – legitimately or otherwise – whether before or after Armenia’s ratification of the Convention. Their proprietary rights are thus still valid. Since the applicants accordingly hold existing possessions, there is no need to examine their claim that they had a “legitimate expectation” to become formal owners of their land following the enactment of the 1992 Land Code.
150. Moreover, having regard to the above conclusion that the applicants lived in the district of Lachin with their families at the time of their flight and earned their livelihood there, their land and houses must also be considered to have constituted their “homes” for the purposes of Article 8 of the Convention.
151. The Government’s objection concerning the applicants’ victim status is therefore dismissed.
IV. ARMENIA’S JURISDICTION
A. The parties’ submissions
1. The applicants
152. The applicants submitted that Armenia exercised effective control over Nagorno-Karabakh and the surrounding territories, in particular the district of Lachin, and that the matters complained of therefore fell within the jurisdiction of Armenia in accordance with Article 1 of the Convention. Alternatively, such jurisdiction derived from Armenia’s authority or control over the area in question through its agents operating there. The applicants asserted that the Court’s case-law on this issue was settled and referred, inter alia, to Loizidou (cited above), Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, ECHR 2004-VII) and Al-Skeini and Others v. the United Kingdom ([GC], no. 55721/07, ECHR 2011). As regards the burden of proof, they maintained that the test was not “beyond reasonable doubt”; instead, in the present case, there was a presumption of fact that Armenia had jurisdiction over the mentioned territories, a presumption that the Government had failed to rebut.
153. The applicants claimed that Armenia’s military participation in the Nagorno-Karabakh conflict had been considerable and that the evidence to that effect was overwhelming. They submitted, inter alia, that Armenian conscripts had served in Nagorno-Karabakh. According to the above‑mentioned 1994 HRW report, Armenian conscripts had been sent to Nagorno-Karabakh and the surrounding Azerbaijani provinces, and military forces from Armenia had taken part in the fighting in Azerbaijan. The applicants also referred to statements by various political leaders and observers which point towards the involvement of the Armenian army, including the above-mentioned statements by Mr Robert Kocharyan and Mr Vazgen Manukyan (see paragraph 62 above).
154. The applicants also adduced as evidence of Armenian army involvement in the military actions the capture of a number of its soldiers by Azerbaijani units and the increased Armenian draft requirements at the material time. They further submitted that conscripts of the Armenian army were still sent to serve in Nagorno-Karabakh, that such service entitled the officers and soldiers to higher salaries than if they had served in Armenia, and that conscripts had no choice as to where they would like to be deployed, in Armenia or in Nagorno-Karabakh. In support of this assertion, they referred, inter alia, to several judicial and administrative proceedings that had been taken in Stepanakert against Armenian military personnel and an Armenian conscientious objector.
155. In addition to committing troops to the conflict, Armenia had, according to the applicants, provided material aid to Nagorno-Karabakh. Allegedly, the country supplied as much as 90% of the enclave’s budget in the form of interest-free credits. These credits constituted financial assistance which contributed to Armenia’s effective control over Nagorno‑Karabakh and the surrounding territories. As to the Hayastan All‑Armenian Fund, the applicants submitted that it could not be seen as a distinct body independent of the government, as it had been established by presidential decree, its Charter designated the Armenian President as President of the Board of Trustees, and that Board otherwise included several of the highest-ranking representatives of the Armenian authorities, Parliament, Constitutional Court and Central Bank. Furthermore, its mission was to support sustainable development in both Armenia and Nagorno-Karabakh.
156. Moreover, Armenia had provided and continued to provide political support to Nagorno-Karabakh. Numerous key figures in Armenian politics had close ties to and continued to be involved in the political sphere in Nagorno-Karabakh. For example, in August 1993 the Government appointed Mr Serzh Sargsyan, the Minister of Defence of Nagorno-Karabakh, as Minister of Defence of Armenia, and in 1998 Mr Robert Kocharyan became President of Armenia, having previously been the Prime Minister and President of Nagorno-Karabakh. Furthermore, as the “NKR” remained unrecognised by the international community, it was reliant on Armenia for political support and its ability to enter into relations with other States.
157. The applicants further submitted that, in Nagorno-Karabakh, many Armenian laws were applied and the Armenian dram was the main currency in use. Moreover, people from Nagorno-Karabakh were issued with Armenian passports for the purpose of travelling abroad.
2. The Government
158. The Government submitted that Armenia’s jurisdiction did not extend to the territory of Nagorno-Karabakh and the surrounding territories; allegedly, Armenia did not and could not have effective control of or exercise any public power on these territories. In their view, effective control implied detailed direction or control over specific operations of the controlled entity, with the capacity to start and stop them as well as to determine their course. Pointing out that extraterritorial jurisdiction was an exception to the principle that a State had jurisdiction over its own territory, the Government maintained that the burden of proving such control was on the applicants, that the burden of proof should be of a high standard, and that they could not discharge this burden, as evidence rather showed that there was no Armenian influence, let alone control, over the “NKR”. The Government was of the opinion that Al-Skeini (cited above) was not relevant to the present circumstances as that judgment relied on “State agent authority and control” which did not apply to the facts of the present case. Furthermore, the merely supportive role played by Armenia in relation to the “NKR” was fundamentally different from the number of Turkish soldiers involved in northern Cyprus or the size of the Russian military arsenal present in Transdniestria (as established in Loizidou and Ilaşcu and Others, both cited above), and did not, under any reasonable definition, amount to effective control.
159. The Government asserted that Armenia had not participated in the military conflict in question. The attack on Lachin from 17 to 18 May 1992 – as well as the capture of Shusha/Shushi on 9 May – had been conducted by the “NKR” defence force, of which 90% was made up of people from Nagorno‑Karabakh. The military actions were actually against the interests of the Government, which was at the time negotiating a ceasefire agreement with the Azerbaijani leaders; a meeting had been held from 8 to 9 May in Tehran. Nonetheless, the capture of these two towns had been deemed necessary by the “NKR” forces in order to stop Azerbaijani war crimes and open up a humanitarian corridor to Armenia.
160. The Government further maintained that Armenia had not taken part in any subsequent military actions either. This was allegedly shown by the fact that there was not a single mention in any international document of Armenian army participation. Instead, these documents talked about “local Armenian forces”. Furthermore, the Armenian authorities had not adopted any legal acts or programmes or taken other official steps to get involved in the military actions, which had been entirely carried out by the “NKR” defence force, established in early 1992 following the enactment of the “NKR” Law on conscription. It had been assisted by the Armenian population in Nagorno-Karabakh and the surrounding territories as well as volunteers of Armenian origin from various countries. Armenia had only been involved in the war in so far as it had defended itself against Azerbaijani attacks on its territory within the recognised borders of Armenia. However, as Armenia and the “NKR” had a common enemy, their armed forces cooperated in various ways.
161. Armenia did not currently have any military presence in Nagorno‑Karabakh and the surrounding territories. No military detachment, unit or body was stationed there. In the district of Lachin there were no military units at all, as Lachin was at a considerable distance from the “NKR” border with Azerbaijan and there was therefore no need to keep units there. It could not be ruled out that some Armenian nationals may have served in the “NKR” defence force on a contractual and voluntary basis. Moreover, according to the 1994 Agreement on Military Cooperation between the Governments of the Republic of Armenia and the “Republic of Nagorno‑Karabakh” (“the 1994 Military Agreement”), draftees from Armenia, upon their consent, may perform their military service in the “NKR” and vice versa, as well as participate in military exercises organised in the “NKR” or in Armenia. The legal proceedings involving Armenian conscripts who had served in the “NKR” had a simple explanation: under the Agreement, criminal charges against Armenian conscripts were dealt with by the Armenian prosecutors and any such charges against Karabakhi conscripts were dealt with by the “NKR” authorities. However, only a small number of Armenian volunteer conscripts had served in Nagorno-Karabakh where they had moreover been under the direct command of the “NKR” defence force.
162. The Government further submitted that the “NKR”, since its formation, had carried out its political, social and financial policies independently. Armenia had not given any economic help to the “NKR” other than, for several years, providing the “NKR” with long-term loans for the implementation of specific projects, including the rebuilding of schools and other educational institutions and the provision of financial assistance to the families of soldiers killed in action. Such help had been provided by other countries as well. Moreover, the Fund played a great role in the development of the “NKR”. Its main mission was to provide financial assistance to Armenia and the “NKR”, using resources collected by the Armenian diaspora. While there were Armenian representatives on the Board of Trustees, the majority of the Board’s members were from the Armenian diaspora and the “NKR”. The Fund’s agenda was not set by the government; often the donors themselves decided to which projects their money should go. The only governmental assistance to the Fund was the provision of rent-free offices in a government building in Yerevan. Thus, it was not an instrument of control, but a non-political, charitable organisation, which had provided USD 111 million to the “NKR” for building schools and hospitals, reconstructing roads and villages, assisting with cultural events and subsidising work and education for the poor. Resources were also provided by other funds and international organisations. Charity and international investments in the “NKR” annually accounted for USD 20-30 million and 30-40 million respectively.
163. In the view of the Government, the “NKR” was a sovereign, independent State possessing all the characteristics of an independent State under international law. It exercised control and jurisdiction over Nagorno-Karabakh and the territories surrounding it. Only the laws and other legal acts of the “NKR” were applied on these territories, and it was normal for the “NKR” to have borrowed or adopted some laws from Armenia. The “NKR” had its own court system which operated entirely independently. Political elections were held in the “NKR”, and the fact that some individuals had been in high political office in both the “NKR” and Armenia was nothing out of the ordinary in the early days of both countries’ independence. Armenia’s political support was limited to taking part in the settlement negotiations conducted within the framework of the Minsk Group, with a view to regulating the Nagorno-Karabakh conflict. “NKR” passports were issued to its citizens, who had political rights and civil duties on the basis of their citizenship. Armenian passports had been issued only to some residents of Nagorno-Karabakh so as to enable them to travel abroad. Several currencies, not only the Armenian dram, were used in the “NKR”.
164. The Government also asserted that the only facts relevant for the Court’s examination of the jurisdiction issue were those dating from May 1992 (“the causation question”) and post-April 2002 (“the jurisdiction question”). Evidence since 2002 demonstrated that Armenia and the “NKR” were friendly countries, with much in common and with close economic and social links, a military alliance and a shared ethnicity. Armenia had had some influence in so far as it had, from time to time, given financial and other assistance to the “NKR”. Furthermore, as a good neighbour and ally, it had helped to maintain, from its end, the humanitarian corridor in the district of Lachin. However, the Republic of Armenia and the “NKR” were different countries.
3. The Azerbaijani Government, third-party intervener
165. The Azerbaijani Government agreed with the applicants that Armenia exercised effective control of Nagorno-Karabakh and the surrounding territories, including the Lachin area. They invoked statements by various international and non-governmental organisations and the US Department of State, as well as many political leaders in claiming that, at the beginning of the 1990s, Armenian forces, fighting beside separatist Karabakhi forces, had occupied Nagorno-Karabakh as well as Lachin and the other surrounding territories and that these territories continued to be occupied by Armenia, which had soldiers stationed there. In the latter respect, they referred to Harutyunyan v. Armenia (no. 36549/03, ECHR 2007-III) and Zalyan, Sargsyan and Serobyan v. Armenia ((dec.), nos. 36894/04 and 3521/07, 11 October 2007). The “NKR” was not an independent State, as claimed by the respondent Government, but a subordinate local administration surviving by virtue of the military and other support afforded by Armenia. Allegedly, it was not conceivable that the “NKR” defence force would exist in any recognisable form without the extensive support of Armenia, expressed, for example, in weapons, equipment, training and, above all, the constant provision of a highly significant percentage – if not an actual majority – of soldiers based in the occupied territories.
166. The Azerbaijani Government also submitted that the “NKR” could not survive – politically, economically or militarily – without the significant support provided by Armenia. They pointed, inter alia, to the close political links between Nagorno-Karabakh and Armenia which, moreover, had a strong personal element at the highest level. Furthermore, economic aid provided by Armenia was essential for the “NKR”. The Government referred to the Fund, which allegedly had to be seen as an organ of the Armenian State in relation to the aid given to Nagorno-Karabakh. The Fund had had a significant impact in the “NKR”, not just financially but also socially. Allegedly, it was carried by political will, reinforcing Nagorno-Karabakh’s economic dependency on Armenia and further integrating the “NKR” into Armenia. They also referred to the Armenian State loans, which constituted a major part of the “NKR” budget. Moreover, the Azerbaijani Government asserted that individuals residing in Nagorno-Karabakh and the surrounding territories were holders of Armenian passports.
B. The Court’s assessment
167. While a State’s jurisdictional competence is primarily territorial, the concept of jurisdiction within the meaning of Article 1 of the Convention is not restricted to the national territory of the High Contracting Parties, and the State’s responsibility can be involved because of acts and omissions of their authorities producing effects outside their own territory.
Article 1 of the Convention 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.”
1. General principles on extraterritorial jurisdiction
168. The Court has recognised the exercise of extraterritorial jurisdiction by a Contracting State when this State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by that government. The principles have been set out in several cases, including Ilaşcu and Others (cited above, §§ 311-19), Al-Skeini and Others (cited above, §§ 130-39) and Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04 and 2 others, 19 October 2012). The relevant passages of Catan and Others read as follows.
“103. The Court has established a number of clear principles in its case-law under Article 1. Thus, as provided by this Article, the engagement undertaken by a Contracting State is confined to ‘securing’ (‘reconnaître’ in the French text) the listed rights and freedoms to persons within its own ‘jurisdiction’ (see Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161, and Banković and Others v. Belgium and Others [GC] (dec.), no. 52207/99, § 66, ECHR 2001-XII). ‘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 (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 311, ECHR 2004-VII, and Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 130, 7 July 2011).
104. A State’s jurisdictional competence under Article 1 is primarily territorial (see Soering, cited above, § 86; Banković and Others, cited above, §§ 61 [and] 67; Ilaşcu and Others, cited above, § 312; and Al-Skeini and Others, cited above, § 131). Jurisdiction is presumed to be exercised normally throughout the State’s territory (see Ilaşcu and Others, cited above, § 312; Assanidze v. Georgia [GC], no. 71503/01, § 139, ECHR 2004-II). Conversely, acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1 only in exceptional cases (see Banković and Others, cited above, § 67, and Al-Skeini and Others, cited above § 131).
105. To date, 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 extra-territorially must be determined with reference to the particular facts (see Al-Skeini and Others, cited above, § 132).
106. One exception to the principle that jurisdiction under Article 1 is limited to a State’s own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State’s own armed forces, or through a subordinate local administration (see Loizidou v. Turkey (preliminary objections), 23 March 1995, § 62, Series A no. 310; Cyprus v. Turkey [GC], no. 25781/94, § 76, ECHR 2001-IV; Banković and Others, cited above, § 70; Ilaşcu and Others, cited above, §§ 314-16; Loizidou v. Turkey (merits), 18 December 1996, § 52, Reports of Judgments and Decisions 1996-VI; and Al-Skeini and Others, cited above, § 138). Where the fact of such domination over the territory is established, it is not necessary to determine whether the Contracting State exercises detailed control over the policies and actions of the subordinate local administration. The fact that the local administration survives as a result of the Contracting State’s military and other support entails that State’s responsibility for its policies and actions. The controlling State has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights (see Cyprus v. Turkey, cited above, §§ 76-77, and Al-Skeini and Others, cited above, § 138).
107. It is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In determining whether effective control exists, the Court will primarily have reference to the strength of the State’s military presence in the area (see Loizidou (merits), cited above, §§ 16 and 56, and Ilaşcu and Others, cited above, § 387). Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region (see Ilaşcu and Others, cited above, §§ 388-94, and Al‑Skeini and Others, cited above, § 139).
...
115. ... As the summary of the Court’s case-law set out above demonstrates, the test for establishing the existence of ‘jurisdiction’ under Article 1 of the Convention has never been equated with the test for establishing a State’s responsibility for an internationally wrongful act under international law.”
2. Application of these principles to the facts of the case
169. The Court first considers that the situation pertaining in Nagorno-Karabakh and the surrounding territories is not one of Armenian State agents exercising authority and control over individuals abroad, as alternatively argued by the applicants. Instead, the issue to be determined on the facts of the case is whether Armenia exercised and continues to exercise effective control over the mentioned territories and as a result may be held responsible for the alleged violations. As noted by the Court in Catan and Others (cited above, § 107), this assessment will primarily depend on military involvement, but other indicators, such as economic and political support, may also be of relevance.
170. While the applicants used to live in the district of Lachin, the issue of jurisdiction does not concern solely this area. In fact, Lachin is one of the parts of the mentioned territories that is situated farthest away from the Line of Contact with Azerbaijan. The district is sheltered by Nagorno-Karabakh to the east, by the districts of Kelbajar as well as Gubadly and Jebrayil to the north and south and by Armenia to the west. To determine whether Armenia has jurisdiction in the present case, it is thus necessary to assess whether it exercises effective control over Nagorno-Karabakh and the surrounding territories as a whole.
171. Moreover, although responsibility for an alleged violation cannot be imputed to Armenia on the basis of events that took place before 26 April 2002, the date of its ratification of the Convention, facts relating to earlier events may still be taken into account as indicative of a continuing situation which still persisted after that date.
(a) Military involvement
172. The Nagorno-Karabakh conflict escalated into a full-scale war in 1992 but had started already some years earlier, with calls for the incorporation of Nagorno-Karabakh into Armenia coming from both entities. More significantly, in December 1989, the Supreme Soviet of the Armenian SSR and the Nagorno-Karabakh Regional Council adopted a Joint Resolution on the reunification of Nagorno-Karabakh with Armenia and, in January 1990, a joint budget was established. It is clear that, since the beginning of the conflict, the Armenian SSR and Armenia have strongly supported the demands for Nagorno-Karabakh’s incorporation into Armenia or, alternatively, its independence from Azerbaijan.
173. The material available to the Court does not – and could not be expected to – provide conclusive evidence as to the composition of the armed forces that occupied and secured control of Nagorno-Karabakh and the seven surrounding districts between the outbreak of war in early 1992 and the ceasefire in May 1994. For instance, the UN Security Council Resolutions adopted in 1993, while expressing serious concern at the tension between Armenia and Azerbaijan, referred to invasion and occupation by “local Armenian forces” and urged Armenia to exert its influence on “the Armenians of the Nagorny-Karabakh region” (see paragraph 59 above). Nevertheless, the HRW report (see paragraph 60 above) attests to the involvement of the Armenian armed forces at this point in time. Furthermore, the Armenian Minister of Defence from 1992 to 1993, Mr Vazgen Manukyan, acknowledged this state of affairs (see paragraph 62 above).
174. Moreover, in the Court’s view, it is hardly conceivable that Nagorno-Karabakh – an entity with a population of less than 150,000 ethnic Armenians – was able, without the substantial military support of Armenia, to set up a defence force in early 1992 that, against the country of Azerbaijan with a population of approximately seven million people, not only established control of the former NKAO but also, before the end of 1993, conquered the whole or major parts of seven surrounding Azerbaijani districts.
175. In any event, Armenia’s military involvement in Nagorno-Karabakh was, in several respects, formalised in June 1994 through the 1994 Military Agreement (see paragraph 74 above). In addition to identifying many military issues on which the two entities would work together, the agreement notably provides that conscripts of Armenia and the “NKR” may do their military service in the other entity.
176. Later reports and statements confirm the participation of Armenia’s forces in the conflict. For instance, while not leading to any agreement between the parties, the “package deal” and the “step-by-step” approach drafted within the Min
