THIRD SECTION
DECISION
Application no. 36606/08
Nuraddin Ali oglu SAMADOV
against Armenia
The European Court of Human Rights (Third Section), sitting on 26 January 2021 as a Chamber composed of:
Paul Lemmens, President,
Georgios A. Serghides,
Dmitry Dedov,
Armen Harutyunyan,
María Elósegui,
Erik Wennerström,
Anja Seibert-Fohr, judges,
and Milan Blaško, Section Registrar,
Having regard to the above application lodged on 4 July 2008,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Nuraddin Samadov, is an Azerbaijani national who was born in 1954 and lives in Ganja.General background
2. 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. During the war, ethnic Armenian forces took control of Nagorno-Karabakh and conquered, wholly or substantially, seven Azerbaijani districts surrounding Nagorno-Karabakh, including Kalbajar. The war ended with the signing, on 5 May 1994, of a ceasefire agreement (the Bishkek Protocol) by Armenia, Azerbaijan and the “NKR” (see further Chiragov and Others v. Armenia [GC], no. 13216/05, §§ 12-25, 16 June 2015).
3. Following the war, no political settlement of the conflict has been reached; the situation remains hostile and tense and there have been recurring breaches of the ceasefire agreement. 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, which was created in 1992 (ibid.; §§ 28-31). Prior to their accession to the Council of Europe in January 2001, 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 (2000)14; see further ibid., § 50). In April 2002 both states ratified the Convention. In respect of Armenia, the Convention entered into force on the day of its ratification, 26 April 2002.
4. At the end of September 2020 hostilities started in and around Nagorno‑Karabakh, followed by a ceasefire agreement signed on 9 November 2020. These hostilities have no implications for the Court’s consideration of the present application.The circumstances of the case
5. The facts of the case, as submitted by the applicant, may be summarised as follows.
6. The applicant was born in the Kalbajar district, at the time part of the Azerbaijan Soviet Socialist Republic and, as from October 1991, part of independent Azerbaijan. He lived in Kalbajar city when, in April 1993, he was forced to flee because the district was invaded and captured by ethnic Armenian forces. He owned a house of 140 sq. m. and the land on which it stood. He submitted property and identity documents in support of this claim.
7. Due to the occupation of Kalbajar the applicant had not been able to return to his home and property. He had lost control over the property and any possibility to use and enjoy it. Instead, he lived with his family in housing assigned to them as internally displaced persons.
COMPLAINTS
8. The applicant complained about continuing violations of his rights under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention in that he was denied the possibility to return to his home and had lost all access to and use of his property.
THE LAW
9. The present application was lodged on 4 July 2008, that is, more than six years after the ratification by Armenia of the Convention on 26 April 2002 and its entry into force on the same day. The question therefore arises whether the applicant introduced the application “without undue delay” and thus complied with the six-month rule in Article 35 § 1 of the Convention.
10. In cases examining alleged violations of the rights to property and home, the Convention institutions initially held that the six-month rule was not applicable in regard to a state of affairs which was still continuing, as it could only apply after that state had ceased to exist (see, for instance, Cyprus v. Turkey, no. 8007/77, Commission decision of 10 July 1978, D.R. 13, p. 85 at p. 154). This approach was followed in many subsequent admissibility decisions; in several decisions the six-month issue was dealt with only briefly or not at all, because the respondent Government had not made submissions on the point.
11. The Court then summarised the relevant principles relating to the application of the six-month rule in Varnava and Others v. Turkey ([GC], nos. 16064/90 and 8 others, ECHR 2009), which dealt with the continuing failure to investigate disappearances of individuals:
“156. The object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see, amongst other authorities, Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I).
157. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset however that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). Nor can Article 35 § 1 be interpreted in a manner which would require an applicant to seize the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 4 June 2001).
...
159. Nonetheless it has been said that the six month time-limit does not apply as such to continuing situations (see, for example, Agrotexim Hellas S.A. and Others v. Greece, no. 14807/89, Commission decision of 12 February 1992, DR 71, p. 148, and Cone v. Romania, no. 35935/02, § 22, 24 June 2008); this is because, if there is a situation of ongoing breach, the time-limit in effect starts afresh each day and it is only once the situation ceases that the final period of six months will run to its end. ...
160. The Court cannot emphasise enough that the Convention is a system for the protection of human rights and that it is of crucial importance that it is interpreted and applied in a manner that renders these rights practical and effective, not theoretical and illusory. This concerns not only the interpretation of substantive provisions of the Convention, but also procedural provisions; it impacts on the obligations imposed on respondent Governments, but also has effects on the position of applicants. For example, ... where time is of the essence in resolving the issues in a case, there is a burden on the applicant to ensure that his or her claims are raised before the Court with the necessary expedition to ensure that they may be properly, and fairly, resolved.
161. In that context, the Court would confirm the approach adopted by the Chamber in the present applications. Not all continuing situations are the same; the nature of the situation may be such that the passage of time affects what is at stake. In cases of disappearances, just as it is imperative that the relevant domestic authorities launch an investigation and take measures as soon as a person has disappeared in life‑threatening circumstances, it is indispensable that the applicants, who are the relatives of missing persons, do not delay unduly in bringing a complaint about the ineffectiveness or lack of such investigation before the Court. With the lapse of time, memories of witnesses fade, witnesses may die or become untraceable, evidence deteriorates or ceases to exist, and the prospects that any effective investigation can be undertaken will increasingly diminish; and the Court’s own examination and judgment may be deprived of meaningfulness and effectiveness. Accordingly, where disappearances are concerned, applicants cannot wait indefinitely before coming to Strasbourg. They must make proof of a certain amount of diligence and initiative and introduce their complaints without undue delay. ... .”
These considerations have been reiterated in several other judgments (see, for instance, Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 258-269, ECHR 2014 (extracts), which concerned the lack of effective investigations into deaths and ill-treatment).
12. Consequently, the early principle that the six-month rule never applies to continuing situations must be said to have been modified through the Court’s imposition of a duty of diligence and initiative on applicants where time is of the essence in resolving the issues in a case (cf. Varnava and Others, cited above, § 160). Failure to comply with that duty may lead to the application being rejected as having been lodged out of time. Like the six‑month rule this approach is based on the principle of legal certainty.
13. As was noted in the Varnava and Others judgment, not all continuing situations are the same. The subject-matters and the nature of the situations may put greater or lower demands on the diligence of applicants. In that judgment, the Court described certain effects caused by the passage of time in disappearance cases, including the risk that its own examination would be deprived of meaningfulness and effectiveness (§ 161). While there are differences between such cases and those relating to the continuing denial of access to property and home, the passage of time having more important consequences when there is an ongoing failure to investigate disappearances, the time element is not without relevance for the rights at issue and for the Court’s examination in the present case. In Demopoulos and Others v. Turkey ((dec.) [GC], nos. 46113/99 and 7 others, ECHR 2010), which concerned complaints by Greek-Cypriots about a continued lack of access to their property and homes in northern Cyprus, the Court has already had occasion to describe the difficulties which arise where applicants may come back periodically and indefinitely to claim the loss of use of their properties and homes until a political solution is reached. It observed that many decades after the loss of possession by the then owners, property had in many cases changed hands and that there had always been a strong legal and factual link between ownership and possession (ibid., § 111).
The Court held in that case, which did not address the six-month rule, that the attenuation over time of the link between the holding of title and the possession and use of the property in question had consequences for the interpretation of what was an effective remedy for the purpose of Article 35 § 1 of the Convention (ibid., § 113). Similarly, the Court considers that the effects of the passage of time cannot be disregarded where the interpretation of the six-month rule is concerned.
14. As in Varnava and Others (cited above), the present case concerns a continuing situation in a complex post-conflict context affecting large groups of persons. In regard to the context relevant to the present case, examined in the case of Chiragov and Others, the Court has concluded that no domestic remedy capable of providing redress in respect of the Convention complaints and offering reasonable prospects of success has been available to applicants (see Chiragov and Others [GC], cited above, §§ 118‑120). It may therefore be reasonable for applicants to wait for the outcome of political processes such as peace talks and negotiations which, in the circumstances, may offer the only realistic hope of obtaining a solution. Nevertheless, the time may come when an applicant should introduce his or her case as remaining passive in the face of an unchanging situation would no longer be justified. Once an applicant has become aware or should be aware that there is no realistic hope of regaining access to his or her property and home in the foreseeable future, an unexplained or excessive delay in lodging the application may lead to the application being rejected as out of time (see Chiragov and Others (dec.) [GC], no. 13216/05, §§ 140‑141, 14 December 2011).
15. In the admissibility decision in Chiragov and Others, the Court did not indicate general time-frames for the applicants’ duty of diligence. It stated, however, that the time-frames should be generous in order to allow for the situation to settle and to permit applicants to collect comprehensive information on the chances of obtaining a solution at the domestic level. In that case, having regard to the time that had passed since the applicants’ forced displacement, their ensuing personal situation and the existence of political negotiations, the Court found that, by introducing the application about three years after Armenia’s ratification of the Convention, the applicants had acted without undue delay (cf. Chiragov and Others (dec.) [GC], cited above, §§ 143-147). In the similar case of Sargsyan v. Azerbaijan, a period of four years and almost four months after ratification was also considered acceptable (Sargsyan v. Azerbaijan (dec.) [GC], no. 40167/06, §§ 142-146, 14 December 2011).
16. The Court reiterates that, in the context of their accession to the Council of Europe, Armenia and Azerbaijan gave a joint undertaking in the year 2000 to seek a peaceful settlement of the Nagorno-Karabakh conflict (see paragraph 3 above). That undertaking and the States’ ratification of the Convention in April 2002 led to a phase of intensified contacts and negotiations. Thus the applicants, like hundreds of thousands of refugees and internally displaced persons, could for some time after the ratification and the entry into force of the Convention have reasonably expected that a solution to the conflict would eventually be achieved, containing a basis for the settlement of property issues and for the question of the return of displaced persons as one aspect (cf. Chiragov and Others (dec.) [GC], cited above, §§ 144-145).
17. However, several years later the hope of a political solution must be considered to have turned very weak. In this respect, it is of particular significance that the negotiations conducted by the OSCE Minsk Group (see paragraph 3 above), created for this purpose in 1992, had not led to any agreement between the parties to the conflict in the years following the ratifications of the Convention. Thus, several years after Armenia’s ratification of the Convention, potential applicants should have become aware that there was no longer any realistic hope of regaining access to their property and home in the foreseeable future.
18. The present applicant introduced his application more than six years after Armenia’s ratification of the Convention and its entry into force. Also, at the time of introduction, more than fifteen years had elapsed since the applicant’s forced displacement from his alleged property and home in Kalbajar. His inability to return to his former domicile or to have any other access to or compensation for his property and home had thus remained unchanged for a considerable period of time during which there were no domestic petitions made or proceedings conducted and no political solution in sight. In contrast to Greek Cypriot nationals claiming property rights in northern Cyprus, who since December 2005 have been provided with the possibility to claim compensation, exchange and restitution of immovable property before the Immovable Property Commission (see Demopoulos and Others, cited above, §§ 35-40) and, consequently, could await the outcome of the relevant proceedings, there have been no property claims mechanisms or other procedures in either Armenia or Azerbaijan whose conclusion the applicant and other potential claimants had to wait for before applying to the Court. Moreover, there is no other indication that the applicant was unable to introduce his application with a shorter delay. In this connection, it should be noted that more than a thousand similar applications were lodged with the Court in the years 2004-2007. In the Court’s view, even with due regard being had to the applicant’s personal status as a displaced person, the mentioned period of more than six years must be considered excessive. Consequently, in introducing his application on 4 July 2008, the applicant failed to act with due diligence.
It follows that the application must be rejected as having been lodged out of time under Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Done in English and notified in writing on 18 February 2021.
Milan BlaškoPaul Lemmens
RegistrarPresident
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