Legal summary
October 2023
Ohanyan and Others v. Azerbaijan (dec.) - 74508/16
Decision 12.9.2023 [Section V]
Article 1
Jurisdiction of States
Lack of jurisdiction of Azerbaijan for alleged Convention violations during “Four-Day War” on territory beyond the line of contact between Azerbaijan and the “Republic of Nagorno-Karabakh”: inadmissible (incompatible ratione loci and ratione personae)
[This summary also covers the decision in the case of Hakobyan v. Azerbaijan, nos. 74566/16 and 74573/16, 12 September 2023]
Facts – At the time of the demise of the Soviet Union, the conflict over the status of the region of Nagorno-Karabakh arose. In September 1991 the establishment of the “Republic of Nagorno-Karabakh” (the “NKR”; in 2017 renamed the “Republic of Artsakh”) was announced, the independence of which has not been recognised by any State or international organisation. In early 1992 the conflict gradually escalated into a full-scale war which ended in May 1994 with the signing of a ceasefire agreement by Armenia, Azerbaijan and the “NKR”. However no political settlement of the conflict has been reached; the situation has remained hostile and tense and there have been recurring breaches of the ceasefire agreement.
From the night between 1 and 2 April 2016 until 5 April 2016 heavy military clashes occurred close to the line of contact between the “NKR” and Azerbaijan (sometimes referred to as the “Four-Day War”). Further clashes took place later that month. Official sources indicated at least 100 dead on either side of the conflict. The great majority of the casualties were soldiers but also several civilians died. Many residents in the targeted towns and villages had to leave their homes for certain periods of time. Furthermore, the clashes led to substantial property and infrastructure damage.
The applicants lived in villages in the “NKR” located close to the line of contact which were bombed and shelled during the “Four-Day War”. They complained of violations by Azerbaijan of Articles 2 and 8, 13 and 14 and Article 1 of Protocol No. 1.
Law – The Court had recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries. The question whether exceptional circumstances existed had to be determined with reference to the particular facts. The two main criteria established by the Court in regard to extraterritorial jurisdiction were that of “effective control” by the State over an area (spatial concept of jurisdiction) and that of “State agent authority and control” over individuals (personal concept of jurisdiction).
The villages in which the events of the present cases had taken place were situated on the internationally recognised territory of Azerbaijan. Jurisdiction within the meaning of Article 1 of the Convention was presumed to be exercised throughout a Contracting State’s territory. However, the relevant area had been outside the control of Azerbaijan for many years following the first Nagorno-Karabakh war in 1992‑1994 and that situation had persisted at the time of the events of the present case. In the case of Chiragov and Others v. Armenia [GC] the Court had found it established that, from the early days of the Nagorno-Karabakh conflict, Armenia had had a significant and decisive influence over the “NKR”, that the two entities had been highly integrated in virtually all important matters and that that situation persisted. In other words, the “NKR” and its administration had survived by virtue of the military, political, financial and other support given to it by Armenia which, consequently, exercised effective control over Nagorno-Karabakh and the surrounding territories. That conclusion was later reiterated in Muradyan v. Armenia.
In the present cases, it had to be determined whether the consequences of the international armed conflict at issue, in particular the consequences allegedly suffered by the applicants on territory beyond the line of contact between Azerbaijan and the “NKR”, could be considered to come within the jurisdiction of Azerbaijan.
As noted by the Court in Georgia v. Russia (II) [GC] in the event of military operations – including, for example, armed attacks, bombing or shelling – carried out during an international armed conflict one could not generally speak of “effective control” over an area. The very reality of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos meant that there was no control over an area. However, there were certain exceptions. The Georgia v. Russia (II) judgment could not, therefore, be seen as authority for excluding entirely from a State’s Article 1 jurisdiction a specific temporal phase of an international armed conflict.
The present cases had involved heavy shelling of towns and villages on either side of the line of contact for four days, resulting in many dead, wounded or temporarily homeless people as well as considerable damage to property and infrastructure on both sides. In those circumstances, and without any indication to the contrary, it had not been a situation of “effective control” over an area.
Nor could it be said that there had been “State agent authority and control” over individuals regarding the events complained by the applicants. In earlier cases examined by the Court, such authority and control had been established in circumstances involving the exercise of physical power and control over the persons in question or when there had been an element of proximity. However, the active phase of hostilities under examination in the present cases had been very different as it had concerned bombing and artillery shelling by the armed forces on both sides of the conflict, seeking to put the enemy force hors de combat and capture territory. The factual elements of the case did not reveal any instance of control over or proximity to the individuals in question.
In conclusion, the military operations and their consequences at issue in the present case did not fall within the jurisdiction of Azerbaijan for the purposes of Article 1, either as “effective control” over territory or as “State agent authority and control” over individuals.
Conclusion: inadmissible (incompatible ratione loci and ratione personae).
(See also Chiragov and Others v. Armenia [GC], 13216/05, 16 June 2015, Legal Summary; Sargsyan v. Azerbaijan [GC], 40167/06, 16 June 2015, Legal Summary; Muradyan v. Armenia, 11275/07, 24 November 2016; Georgia v. Russia (II) [GC], 38263/08, 21 January 2021, Legal Summary; Ukraine and the Netherlands v. Russia (dec.) [GC], 8019/16 et al, 30 November 2022, Legal Summary)
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This summary by the Registry does not bind the Court.
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