CASE OF SARGSYAN v. AZERBAIJAN

1. The case originated in an application (no. 40167/06 ) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Mr Minas Sargsyan (“the applicant”), on 11 August 2006. The applicant died in 2009. Subsequently, the application was pursued by his widow, Ms Lena Sargsyan, born in 1936, his son, Vladimir, and daughters, Tsovinar and Nina Sargsyan, born in 1957, 1959, and 1966 respectively. Ms Lena Sargsyan died in January 2014. Vladimir and Tsovinar Sargsyan pursued the proceedings on the applicant ’ s behalf.
2. The applicant, who had been granted legal aid, was represented by Ms N. Gasparyan and Ms K. Ohanyan, lawyers practising in Yerevan. The Azerbaijani Government ( “ the Government ” ) were represented by their Agent, Mr Ç. Asgarov.
3. The applicant alleged, in particular, that the denial of his right to return to the village of Gulistan and to have access to his property there or to be compensated for his loss, and the denial of access to his home and to the graves of his relatives in Gulistan amounted to continuing violations of Article 1 of Protocol No. 1 and of Article 8 of the Convention. Moreover, he alleged a violation of Article 13 of the Convention in that no effective remedy was available in respect to the above complaints. Finally, he alleged with a view to all the complaints set out above, that he was subjected to discrimination on the basis of his ethnic origin and his religious affiliation in violation of Article 14 of the Convention.
4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court ). The Armenian Government made use of their right to intervene under Article 36 § 1 of the Convention. They were represented by their Agent, Mr. G. Kostanyan.
5. On 11 March 2010 a Chamber of the First Section, composed of Christos Rozakis, Nina Vajić, Khanlar Hajiyev, Dean Spielmann, Sverre Erik Jebens, Giorgio Malinverni and George Nicolaou, judges, and Søren Nielsen, 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 Chiragov and Others v. Armenia (application no. 13216/05) 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 partly admissible by a Grand Chamber composed of Nicolas Bratza, 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 applicant and the Government each filed further observations (Rule 59 § 1) on the merits. In addition, third-party comments were received from the Armenian Government.
10. On 12 September 2013 the Court decided to request factual information from the American Association for the Advancement of Science (AAAS) in the framework of its “Geospatial Technologies and Human Rights Programme” (Rule A1 §§ 1 and 2 of the Annex to the Rules). In November 2013 the AAAS submitted a report entitled, “ High ‑ resolution satellite imagery assessment of Gulistan, Azerbaijan 2002 ‑ 20 12 ” ( “ the AAAS report ” ). The Government objected to the disclosure of a number of images. On 10 December 2013 the President of the Court granted the request. Only those parts of the report which were subject to disclosure were taken to the case file.
11. On 3 February 2014 the Court viewed all the DVDs containing footage of Gulistan and its surroundings submitted by the applicant, the Government and the Armenian Government and relevant parts of the AAAS report.
12. A hearing on the merits took place in public in the Human Rights Building, Strasbourg, on 5 February 2014 (Rule 59 § 3).
There appeared before the Court:
(a) for the GovernmentMr Ç. Asgarov, Agent, Mr M.N. Shaw QC, Mr G. Lansky, Counsel, Mr O. Gvaladze, Mr H. Tretter, Ms T. Urdaneta Wittek, Advisers;
(b) for the applicantMr P. Leach, Ms N. Gasparyan, Counsel, Ms K. Ohanyan, Mr A. Aloyan, Mr V. Grigoryan, Advisers;
(c) for the Armenian GovernmentMr G. Kostanyan, Agent, Mr E. Babayan, Counsel.
13. The Court heard addresses by Mr Leach, Ms Gasparyan, Mr Grigoryan, Mr Shaw, Mr Lansky and Mr Kostanyan.
I. THE CIRCUMSTANCES OF THE CASE
14. 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.
15. According to the census of the USSR of 1989, the NKAO had a population of approximately 189,000, consisting of 77% ethnic Armenians and 22% ethnic Azeris, with Russian and Kurdish minorities.
16. 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 appealed 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.
17. 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.
18. 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.
19. 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 1991. 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 the Azerbaijan SSR, and declared that it was no longer under Azerbaijani jurisdiction. On 26 November 1991 the Azerbaijani Parliament abolished the autonomy previously enjoyed by Nagorno-Karabakh. In a referendum organised in Nagorno-Karabakh on 10 December 1991, 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.
20. In early 1992 the conflict gradually escalated into a full-scale war. By the end of 1993, ethnic Armenian forces had gained control over almost the entire territory of the former NKAO as well as seven adjacent Azerbaijani regions (Lachin, Kelbajar, Jebrayil, Gubadly and Zangilan, and substantial parts of Agdam and Fizuli).
21. 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 1994.
22. According to a Human Rights Watch report ( “ Seven Years of Conflict in Nagorno-Karabakh ”, December 1994), 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 ( IDPs – from regions in Armenia bordering Azerbaijan) have been registered.
23. According to the Armenian 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 7, 500 sq. km.
24. 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.
25. 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.
26. 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 IDPs 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.
27. 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 traveling 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.”
28. 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 applicant and the property allegedly owned by him in Gulistan
29. The applicant, an ethnic Armenian, states that he and his family used to live in the village of Gulistan in the Shahumyan district of the Azerbaijan SSR. He claims to have had a house and outhouses there.
30. Geographically, Shahumyan shared a border with the NKAO and was situated to the north of it. The region did not form part of the NKAO, but was later claimed by the “NKR” as part of its territory (see paragraph 19 above ). According to the applicant, 82% of the population of Shahumyan was ethnically Armenian prior to the conflict.
31. In February 1991 Shahumyan was abolished as a separate administrative region and was formally incorporated into the present-day Goranboy region of the Republic of Azerbaijan.
32. In April and May 1991 the USSR internal forces and the special ‑ purpose militia units (“the OMON”) of the Azerbaijan SSR launched a military operation with the stated purpose of “passport checking” and disarming local Armenian militants in the region. However, according to various sources, the government forces, using the official purpose of the operation as a pretext, expelled the Armenian population from a number of villages in the Shahumyan region, thus forcing them to leave their homes and flee to Nagorno ‑ Karabakh or Armenia. The expulsions were accompanied by arrests and violence towards the civilian population. In 1992, when the conflict escalated into a full-scale war, the Shahumyan region came under attack by the Azerbaijani forces.
1. The parties ’ submissions and evidence presented by them
33. The parties ’ positions differ in respect of the applicant ’ s residence and possessions in Gulistan.
34. The applicant maintained that he had lived in Gulistan for most of his life until his forced displacement in 1992. In support of this claim he submitted a copy of his former Soviet passport issued in 1979, from which it can be seen that the applicant was born in Gulistan. He also submitted his marriage certificate, which shows that he and his wife, who was also born in Gulistan, got married there in 1955. In addition, the applicant asserted that, having grown up in Gulistan, he left for some years to complete his military service and to work in the town of Sumgait. A few years after his wedding, he returned to Gulistan where he lived until June 1992.
35. The applicant submitted a copy of an official certificate (“technical passport”) when he lodged the application. According to that document, dated 20 May 1991, a two-storey house in Gulistan and outhouses of a total area of 167 sq. m and 2,160 sq. m of land were registered in the applicant ’ s name. Furthermore, he submitted a detailed plan of the main house.
36. According to the technical passport, of the 167 sq. m on which the house stood, 76 sq. m were occupied by the main house and 91 sq. m by various outhouses, including a cowshed. Of the 2,160 sq. m of land, 1,500 were a fruit and vegetable garden. The document also contains information of a technical nature (for instance, the building materials used) concerning the main house and the outhouses.
37. The applicant explained that he had obtained the land by permission of the village council to divide his father ’ s plot of land between him and his brother. The decision was recorded in the village council ’ s register. With the help of relatives and friends, he and his wife built their house on that plot of land between 1962 and 19 63. Their four children grew up in the house and he and his wife continued to live there until they had to flee in June 1992. Furthermore, the applicant explained that he had been a secondary school teacher in Gulistan and had earned his living partly from his salary and partly from farming and stockbreeding on his land, while his wife had been working at the village ’ s collective farm from the 1970s.
38. In addition to the technical passport and the plan of the house mentioned above, the applicant submitted photos of the house and written statements dating from August 2010 by two former officials of the village council, Ms Khachatryan and Mr Meghryan. The former states that she was the secretary of the village council from 1952 to 1976. She confirms that the village council allowed the applicant to divide his father ’ s plot of land between himself and his brother. Both Ms Khachatryan and Mr Meghryan, who states that he was a member of the Board of the village council for some years in the 1970s, claim that entries regarding the allotment of land to villagers were made in the registration book of the village council. A number of further written statements from May 2010 by family members (including the applicant ’ s wife, two of their children and his son-in-law ), former neighbours and friends from Gulistan provide a description of Gulistan and confirm that the applicant was a secondary school teacher and had a plot of land and a two-storey house in the village. They also confirm that a number of outhouses and a fruit and vegetable garden belonged to the applicant ’ s house, where he and his family lived until June 1992.
39. The applicant described that the Shahumyan region was subjected to a blockade by the Azerbaijani government in the early 1990s. In 1992 the armed forces started attacking the region. In June 1992 Gulistan came under direct attack by Azerbaijani forces. From 12 to 13 June 1992 the village was heavily bombed. The population of the village, including the applicant and his family members, fled in fear for their lives. The above-mentioned statements by a number of witnesses also provide a description of the blockade of the Shahumyan region during the conflict, of the attack on the village and the flight of its inhabitants.
40. The applicant and his family fled to Armenia. Subsequently, the applicant and his wife lived as refugees in Yerevan. In 2002 the applicant obtained Armenian citizenship. He was seriously ill from 200 4 and died on 13 April 2009 in Yerevan.
41. The Government submitted that it could not be verified whether the applicant had actually lived in Gulistan and had any possessions there. For the period from 1988 to the present date, the relevant departments of the Goranboy region did not possess any documentation concerning the plot of land, house or other buildings allegedly owned by the applicant. Moreover, certain archives of the former Shahumyan region, including the Civil Registry Office and the Passport Office, had been destroyed during the hostilities. No documents relating to the applicant are available in the Goranboy regional archives today.
42. In support of their position, the Government submitted a number of documents, namely: a statement, dated 22 July 2007, by Colonel Maharramov, Head of the Goranboy Regional Police Department, confirming that the archives of the Civil Registry Office and of the Passport Office of the former Shahumyan Region had been destroyed during the conflict; a letter from the State Registry Service for Immovable Property of 31 July 2007 according to which the relevant Regional Department ’ s Archives did not contain any document concerning the applicant ’ s alleged property rights; a statement dated 5 March 2012 by Mr Mammadov, Chairman of the State Land and Mapping Committee of the Republic of Azerbaijan, according to whom only the Executive Committee of the Soviet of People ’ s Deputies of Districts and Cities had been empowered to allocate land under the Land Code of the Azerbaijan SSR.
D. The situation obtaining in Gulistan
43. The parties ’ positions also differ in respect of the current situation obtaining in Gulistan. The Armenian Government, as a third-party intervener, also made submissions on the issue.
44. Regarding the situation in Gulistan, the applicant asserted that Azerbaijan had control over the village and, in particular, that they had positions in the village itself and on its outskirts. In his view, there was nothing to prove that Gulistan was on the Line of Contact (LoC) between Azerbaijani and “NKR” forces as claimed by the Government.
45. In the proceedings prior to the admissibility decision, the applicant submitted a written statement from an anonymous senior officer of the “NKR” armed forces dated 11 August 20 10, according to whom Gulistan was under the de facto control of Azerbaijani military forces (see paragraphs 51 and 58 below). Moreover, the applicant asserted that fellow villagers had tried to return to Gulistan on several occasions but had been unable to enter the village as they would have risked being shot at by Azerbaijani forces.
46. The Government accepted throughout the proceedings that Gulistan was located on the internationally recognised territory of Azerbaijan.
47. In their submissions prior to the admissibility decision, the Government asserted that Gulistan was physically on the LoC between Azerbaijani and Armenian forces, which had been established by the Ceasefire Agreement. The village was deserted and the LoC was maintained by the stationing of armed forces on either side and by the extensive use of landmines. It was thus impossible for the Government to exercise any control over the area or to have any access to it.
48. In their submissions after the admissibility decision, the Government stated that they did not exercise sufficient control over the village. Referring to the statements of a number of military officers who had served in the Goranboy region and had made statements on the situation in Gulistan (see paragraph 62 below), they submitted in particular that the village, situated in a V- shaped valley on the northern bank of the River Inzachay, was on the LoC, meaning that it was surrounded by armed forces of Azerbaijan on one side (in the north and east) and of Armenia on the other side (in the south and west). Armenian forces held strategically advantageous positions on a steep, forested slope south of the river, while Azerbaijani positions on the north bank of the river were situated in lower, relatively open territory. The Government asserted that, as a matter of fact, Gulistan was not under the effective control of either side. It was a contested area and constituted a dangerous environment. The village and its surroundings were mined. Violations of the Ceasefire Agreement occurred frequently. There were no safe buildings in the area as the village had been destroyed and deserted.
49. In their pleadings at the hearing of 5 February 2014, the Government emphasised that Gulistan was exposed to fire from Armenian military positions situated across the river on a steep slope. In addition, they referred to the AAAS report ( see paragraphs 74 - 75 below), noting that it confirmed, apart from the fact that Gulistan was on Azerbaijani territory, that the area around Gulistan was mountainous and was the object of sustained military activity and that the village had been destroyed. They maintained that the area was mined and inaccessible to any civilian.
(c) The Armenian Government, third-party intervener
50. The Armenian Government maintained throughout the proceedings that the respondent Government had full, effective control over Gulistan.
51. At the hearing of 15 September 2010, they had contested the Government ’ s assertion that Gulistan was on the LoC. Referring to the written statement of 11 August 2010 by an anonymous senior officer of the “NKR” armed forces serving near Gulistan which had been submitted by the applicant, the Agent of the Armenian Government had declared that he had been personally present when the statement had been made and confirmed its correctness. On the basis of this statement, the Armenian Government asserted that, in the area in issue, the dividing line between the “NKR” and Azerbaijani armed forces was a gorge through which the River Indzachay flowed. Gulistan was situated north of the riverside and was under the control of Azerbaijani armed forces who had military positions in the village itself and on its outskirts, while “NKR” forces were stationed on the other side of the gorge. They also referred to the DVD containing footage of the village submitted to the Court by the applicant in 2008 (see paragraph 56 below) claiming that the person who can be seen walking between the houses was an Azerbaijani soldier. The Armenian Government maintained that it was impossible for “NKR” forces or any Armenians to have access to the village.
52. In their submissions following the admissibility decision, the Armenian Government disclosed the identity of the senior “NKR” officer at the Court ’ s request. The officer in question is Colonel Manukyan of the “NKR” Defence Army. Moreover, the Armenian Government submitted that their Agent, Mr Kostanyan, had obtained permission from the “NKR” authorities and therefore visited the territory near Gulistan in May 2012. He had obtained DVD material and recorded interviews with three “NKR” officers describing the situation on the ground in and near Gulistan (see paragraph 71 below). The Armenian Government also replied to the Court ’ s question concerning their assertion made at the hearing of 15 September 2010 that the man walking between the ruins on the DVD submitted by the applicant in 2008 was an Azerbaijani soldier: while stating that they were not in a position to comment on that man ’ s identity, they referred to statements of the “NKR” military officers according to whom there were Azerbaijani military positions in Gulistan, while there was no presence of civilians.
53. At the hearing of 5 February 2014, the Armenian Government repeated their description of the situation pertaining in Gulistan. Moreover, they asserted that Azerbaijani military presence in the area had also been confirmed by the AAAS report.
2. Evidence submitted by the parties
54. The parties have submitted extensive documentary material in support of their respective positions. The following paragraphs contain a short description of the main items of evidence.
55. A map of Gulistan and its surroundings: It appears to be a copy of an official map with names in Azeri, showing the entire village on the north bank of a river (Indzachay). The alleged positions of the Azerbaijani forces are indicated as follows: one is in the middle of the village, a few more are on its northern edge, others are also spread out on the north bank of the river but are further away, most of them apparently on the heights around the village.
56. A DVD, submitted with the applicant’s observations of 21 February 2008, containing footage of Gulistan and its surroundings. The village is situated on a hillside. Many of the houses are in ruins, while a few still have intact roofs. Smoke is rising from some chimneys. At one point a man walking between the ruins appears. On a hillside situated some distance from the village, constructions are to be seen which appear to be firing positions.
(iii) Statements by “NKR” officials and by former villagers of Gulistan
57. A letter by the Minister of Defence of the “ NKR” of 14 February 2008 describing the situation on the ground in Gulistan and claiming in particular that the Azerbaijani armed forces had several posts and shooting points right in the village.
58. A statement dated 11 August 2010 by a senior officer of the “NKR” forces serving in a military position near the village of Gulistan since 2005 (see the summary of the statement at paragraph 51 above). The statement was accompanied by a hand-drawn map of Gulistan and its surroundings and a number of photos showing the area. The officer, who had initially remained anonymous, is Colonel Manukyan from the “NKR” Defence Army.
A statement by Mr Aloyan, assistant to the representative of the applicant, who recorded the statement by the “NKR” officer on the spot, namely at the military unit near Gulistan, confirming the contents of the officer ’ s statement and that the photos had been taken from the “NKR” military position.
A statement by Mr Kostanyan, Agent of the Armenian Government, in whose presence the senior “NKR” officer made his statement at his military unit close to Gulistan.
59. Statements dated March 2012 from three former villagers of Gulistan who claimed that they had unsuccessfully tried to return to Gulistan between 2002 and 2004. They claim to have approached the area on the “NKR” side of the ceasefire line; two of them state that they were able to look down on the village from the height of Napat, but were prohibited from moving any further by the “NKR” soldiers accompanying them due to the risk of sniper fire from the opposing forces. One of them states that, with the aid of binoculars, he was able to see a number of entrenchments in the village and a soldier standing there.
60. A map of Gulistan and its surroundings. The map shows the entire village on the north bank of the River Indzachay, the Azerbaijani military positions are also on the north bank of the river mostly on the heights around the village. The “NKR” positions are on the south bank of the river, the closest being right opposite the village.
A map of Nagorno Karabakh submitted by the Armenian Government in Chiragov and Others v. Armenia ([GC], no. 13216/05, ECHR 2015). The map shows Gulistan on the very border of the “NKR” to the north of a river.
A map of Azerbaijan published in 2006 by the State Land and Cartography Committee of the Republic of Azerbaijan. The map shows Gulistan on the very border of the area occupied by the “NKR”. On the map the occupied areas are shaded and surrounded by a red line; Gulistan is on that red line but outside the shaded area, to the north of a river.
61. Two DVDs containing footage of Gulistan and its surroundings, submitted in September 2008 and July 2012, respectively. The first shows the village in a hilly landscape, with most houses in ruins, plus some buildings on the crest of a hill which appear to be firing positions. The second again shows the village (houses in ruins and destroyed farming machinery ) and the surrounding landscape and is accompanied by a text explaining in particular that there is no habitation in the village, that the Armenian positions are on a forested slope and control the village with large - calibre guns, while Azerbaijani positions are at a distance of some 2.5 km and can only visually control the village.
(iii) Statements by Azerbaijani military officers, officials and villagers from neighbouring villages
62. Statements made in March 2012 by six Azerbaijani army officers : Colonel Babayev, who served in a military unit in the Goranboy region from 1994 to 199 7, and Lieutenant colonels Abdulov, Mammadov, Ahmadov, Abbasov and Huseynov, who served in military units in the Goranboy region for various periods between 1999 and 2009 and describe the situation on the ground in Gulistan as follows.
– Gulistan is on the north bank of the River Indzachay.
– Azerbaijani military positions are on the north bank of the river in the east and north-east of the Gulistan settlement, situated in the lowlands, at distances between 1 and 3 km from the destroyed village.
– Armenian military positions are on the south bank of the river in the west and south-west of the Gulistan settlement, situated on strategically better upland positions (steep slopes covered with forest). The estimates given by the officers in respect of the distance at which the nearest Armenian positions are located vary between 200 and 300 m and 1 km.
– Ceasefire violations by the Armenian forces are frequent.
– They contest the Armenian Government ’ s assertion that some of the houses in the village have been repaired and are being used as military positions by the Azerbaijani forces.
– The Azerbaijani positions and the village itself are within shooting range of the Armenian positions (fire with large-calibre machine guns); military staff can therefore not move freely in the area but only on designated routes.
– There are no civilians in the village.
– Most of the buildings (some 100 houses) in the village were destroyed during the hostilities. As the village has been deserted since 1992, houses have decayed, roofs have collapsed and trees are now growing inside the destroyed buildings. There are currently no habitable buildings left; after the hostilities, Armenian forces mined the territory of the settlement, these mines are sometimes triggered by animals.
– Lieutenant colonel Abdulov claims to have observed movements of Armenian military in the ruins in the south part of the Gulistan settlement and Lieutenant colonel Mammadov claims to have seen Armenian military servants moving from their positions towards the river. Lieutenant colonels Abbasov and Huseynov state that they observed Armenian military forces destroying buildings and using the material for their fortifications.
63. Information from the Azerbaijani Ministry of Defence covering the period from 2003 to 2010 on ceasefire violations indicating an increase from 2008 ( twenty in 2008, thirty-five in 2009 and fifty-two in 2010) and on casualties in the area of Gulistan as a result of mine explosions ( five soldiers killed on 5 August 2003) or violations of the ceasefire (one soldier killed on 25 February 2005).
64. A letter by the Director of the National Agency for Mine Action dated 12 July 2010 stating that the village of Gulistan in the Goranboy region was “defined as a territory with an extensive mine and unexploded ordnance (UXO) contamination”.
65. Statements made in March 2012 by eight villagers living in neighbouring settlements, the village of Meshali and the town of Yukhari Aghjakand. They describe Gulistan as being deserted and state that the surroundings are mined and regularly come under fire from the Armenian positions.
66. Two press releases from October 2006 from an Armenian source relating to an OSCE mission monitoring the border line between Nagorno ‑ Karabakh and Azerbaijan near Gulistan.
67. Numerous press releases from the Azeri Press Agency issued between June 2010 and May 2012 mentioning ceasefire violations in various areas including the area of Gulistan. The text most frequently used by these press releases reads as follows: “Armenian armed forces fired on the opposite Azerbaijani Armed Forces from posts near Gulistan village” or “ ... from posts in the nameless upland near Gulistan” or “enemy units fired on the positions of Azerbaijani armed forces from the posts ... near Gulistan in Azerbaijan ’ s Goranboy region ”. One of these press releases, dated 3 March 2012, reports that “Azerbaijani lieutenant Gurban Huseynov has struck a mine in Gulistan on the frontline of the Goranboy region. Consequently, he lost his leg ”.
68. A statement by the International Campaign to Ban Landmines dated 20 September 2013 expressing concern about the increased placement of anti-personnel landmines by the Nagorno-Karabakh authorities along the Armenian-Azerbaijani LoC east and north of the disputed territory.
( c) The Armenian Government, third- party intervener
69. A map of Gulistan and its surroundings, which shows the entire village on the north bank of the River Idzachay. The Azerbaijani positions are also on the north bank of the river and very close to the village (to the east and west of it and on its northern edge), while the “NKR” positions are on the south bank of the river, the closest being just opposite the village.
70. A DVD, submitted in July 2012, containing footage of Gulistan and its surroundings and interviews taken on the spot by Agent of the Armenian Government, Mr Kostanyan, with three “NKR” army officers serving in the military unit near Gulistan (for their contents see paragraph 71 below). It shows the village, with most houses in ruins, and the landscape around it. Towards the end of the video, a herd of sheep and some people can be seen moving behind the destroyed village.
(iii) Statements by “NKR” military officers
71. Transcripts of the interviews recorded in May 2012 with Unit Commander Sevoyan, Sergeant Petrosyan and Officer Vardanyan, serving in the “NKR” military unit located near Gulistan. They describe the situation on the ground as follows.
– The Azerbaijani military forces have positions in the village and sometimes perform combat duties there, but their permanent location point is in the rear.
– There are no civilians in the village.
– There are no mines in the village itself but the area surrounding it has been mined by the Azerbaijani forces (they have noticed that from time to time animals trigger a mine).
– Sometimes there are ceasefire violations by the Azerbaijani side; if they are negligent they risk being shot at from the Azerbaijani positions.
– Several times, former villagers of Gulistan came to the area wishing to visit their village. Due to dangers from snipers and combat weapons ’ fire from the Azerbaijani side, they did not allow them to approach the village.
3. Evidence obtained by the Court
72. On 12 September 2013 the Court requested that the AAAS, in the framework of its “Geospatial Technologies and Human Rights Programme ”, provide a report on the following issues: the location of military positions, such as trenches and fortifications in and around the village of Gulistan, for the period between the entry into force of the Convention in respect of Azerbaijan (15 April 2002) and the present, and on the state of destruction of buildings in the village and of its cemeteries at the time of the Convention ’ s entry into force in respect of Azerbaijan.
73. The AAAS submitted its report to the Court in November 2013. On the basis of the interpretation of high ‑ resolution satellite images from 2005, 2009 and 2012 obtained from public sources, the report provides the following information.
74. In respect of military structures it notes that there are trenches and revetments in the village and adjacent to it in the 2005 and 2009 images, a build-up having taken place in the intervening period, while after 2009 trenches seem to have fallen into disuse, as is shown by the fading visual signature of these trenches in the 2012 image. In the area surrounding Gulistan, military activity was apparent. Military build-up between 2005 and 2009, concerning trenches, revetments, military buildings, vehicles and vehicle tracks was followed by continued military development in the region between 2009 and 2012, but of a different type, in that trenches and revetments fell into disuse, while military buildings and vehicle presence continued to increase.
75. In respect of the destruction of buildings, the report indicates that most of the approximately 25 0 houses in the village are destroyed, the term “destroyed” meaning that they are no longer intact. The report notes that building degradation and vegetation overgrowth obscured building footprints and made structure counts difficult. While in 2005 some thirty-three buildings remained intact, there were only seventeen in 2009 and thirteen in 2012 left. For most of the destroyed buildings, outer and interior walls have been preserved while roofs have collapsed. While the state of the buildings suggests fire as a possible cause of destruction, the report emphasises that the cause of destruction could not be determined via satellite imagery, and, in particular, it was not always possible to state whether or not buildings had been destroyed deliberately. No cemeteries were identifiable on the satellite imagery. The report suggests that this might be due to vegetation overgrowth.
II. THE JOINT UNDERTAKING OF ARMENIA AND AZERBAIJAN
76. 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 222 (2000) on Azerbaijan ’ s application for membership of the Council of Europe read as follows.
“11. The Assembly takes note of the letter from the President of Azerbaijan reiterating his country ’ s commitment to a peaceful settlement of the Nagorno ‑ Karabakh conflict and stressing that Azerbaijan ’ s accession to the Council of Europe would be a major contribution to the negotiations process and stability in the region.
14. The Parliamentary Assembly takes note of the letters from the President of Azerbaijan, the speaker of the parliament, the Prime Minister and the chairmen of the political parties represented in Parliament, and notes that Azerbaijan undertakes to honour the following commitments:
14.2. as regards the resolution of the Nagorno-Karabakh conflict:
a. to continue efforts to settle the conflict by peaceful means only;
b. 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)14 by the Committee of Ministers on the Invitation to Azerbaijan to become a member of the Council of Europe refers to the commitments entered into by Azerbaijan, as set out in Opinion 222 (2000), and the assurances for their fulfilment given by the Azerbaijani Government.
A. The laws of the Azerbaijan SSR
77. The laws relevant to the applicant ’ s right to property were the 1978 Constitution of the Azerbaijan SSR and its 1970 Land Code and 1983 Housing Code.
78. The relevant provisions of the Constitution stated as follows.
“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 the public interest.”
79. 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 the certificates on the right of temporary use of land shall be issued to collective farms, State farms and 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 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. ”
80. 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
81. 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 in cases where they contain an exact reference to possession by the owner of duly formalised documents certifying his or her right to the residential house”.
Article 2. 3 provided as follows:
“In rural areas, as well as when rural settlements are incorporated within a city (village) boundary or reorganised as a city (village), the basis for registration performed pursuant to these Instructions shall include household lists and extracts from them, statements from the Village or Regional Executive Committee of the Soviet of People ’ s Deputies, as well as other documents certifying a property right in the buildings specified in Articles 2. 1 and 2. 2 of these Instructions.”
5. The 1958 Charter on Village Councils of the Deputies of the Workers of the Azerbaijan SSR
82. In addition, according to the applicant, the Charter on Village Councils of the Deputies of the Workers of the Azerbaijan SSR of 23 April 1958 (“the 1958 Charter on Village Councils”) was relevant to the establishment of his rights in respect of the land in the early 1960s. The Government contested that submission.
Section 2, paragraph 9, provided as follows.
“In the field of agriculture, the village council of the Deputies of the Workers:
(j) shall manage the national land fund of villages; shall make allotment and allocation of land plots from such a fund to inhabitants for private construction; shall have control over the maintenance of legislation on land tenure.”
Section 2, paragraph 19, provided as follows.
“In the field of maintenance of public order and rights of inhabitants, the village council of the Deputies of the Workers:
(e) shall carry out the registration of the dividing of family property on collective farms (peasant households).”
1. The 1991 Order on the provision of housing to citizens who forcibly left their places of permanent residence ( refugees)
83. On 6 November 1991 the Supreme Soviet of the Republic of Azerbaijan issued an Order on the provision of housing to citizens who forcibly left their places of permanent residence ( refugees). This Order addressed, inter alia, the developing practice of property swaps between Armenians leaving Azerbaijan and Azerbaijanis leaving Armenia, Nagorno ‑ Karabakh and the surrounding provinces.
“To instruct the Soviets of People ’ s Deputies of the cities of Sumgayit, Ganja, Mingachevir, Yevlakh, Ali-Bayramli, Lenkaran, Naftalan, Sheki and of districts and their local bodies of executive authority to provide, within two months, with housing other families of refugees who have power of attorney or other documents concerning the legal exchange of houses and apartments from Armenia to Azerbaijan.
Having regard to the fact that a considerable number of refugees have exchanged their privately owned houses for State - owned apartments in the cities, to instruct the local executive bodies to transfer these apartments to private ownership of the refugees, after the adoption of the relevant law on privatisation.
To declare the housing facilities constructed by various ministries, institutions and organisations of Azerbaijan after 1988 in the rural areas for housing of refugees as the private property of settled refugees and to instruct local bodies of executive authority to issue these families with relevant documents.
To transfer the free private property of families who have not exchanged or sold it when they left the Republic into private property of families of refugees who came to the Republic of Azerbaijan and permanently reside in these premises, as a compensation for housing left in their places of permanent residence in Armenia forcedly and without compensation.”
84. The 1991 Order is still in force. Apart from that Order, no laws have been adopted in respect of property abandoned by Armenians who left Azerbaijan due to the Nagorno-Karabakh conflict. Consequently, for properties not covered by the Order, the general rules of ownership described in the subsequent paragraphs apply.
85. On 9 November 1991 Azerbaijan enacted 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.
86. 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
– houses, apartments, country houses, garages, domestic appliances and items for private use;
– shares, bonds and other securities;
– 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.”
87. 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 activites and other organisations that are 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.”
88. The 1995 Constitution protects the right to property and provides for State liability in respect of any damage resulting from illegal action or omissions by State bodies and their officials.
The relevant provisions of the Constitution are as follows.
“I. Everyone has the right to own property.
II. No type of property shall have priority. Ownership rights, including the rights of private owners, shall be protected by law.
III. Anyone may possess movable or real property. The right of ownership confers on owners the right to possess, use and dispose of property themselves or jointly with others.
IV. Nobody shall be deprived of his or her property without a court decision. Full confiscation of property shall not be permitted. The transfer of property for State or public use shall only be permitted on condition of prior payment of fair compensation.
V. The State guarantees succession rights.”
“I. The rights of victims of crime or usurpation of power shall be protected by law. The victim has the right to take part in the administration of justice and claim compensation for damages.
II. Everyone has the right to compensation from the State for damages incurred as a result of illegal action or omissions by State bodies or officials.”
89. Provisions of the Civil Code in force before 1 September 2000
Article 8 Application of civil legislation of other Union republicsin the Azerbaijan SSR
“The civil legislation of other Union republics shall apply in the Azerbaijan SSR, according to the following rules:
(1) relations deriving from the right of ownership shall be governed by the law of the place where the property is situated.
(4) obligations arising as a result of the infliction of damage shall be subject to the law of the forum or, upon the request of the aggrieved party, the law of the place where the damage was inflicted; ...”
Article 142 Recovery of property from another ’ s unlawful possession
“The owner shall have the right to recover his property from the unlawful possession of another owner .”
Article 144 Recovery of unlawfully transferred State, cooperative orother public property
“State property or property of kolkhozes or other cooperative and public organisations that has been unlawfully transferred by any means may be recovered from any purchaser by the relevant organisations.”
Article 146 Settlements on the recovery of property from unlawful possession
“In recovering property from unlawful possession, the owner shall have the right to claim compensation from that person, if he or she was aware, or should have been aware, of his or her unlawful possession (owner in bad faith), for any income which he has derived, or should have derived, over the entire period of possession, as well as to claim compensation from a person in bona fide possession for any income which he or she has derived, or should have derived, from the time when he or she learnt of the unlawfulness of the possession or received a summons from the owner claiming the return of the property.”
Article 147 Protection of owner ’ s rights from violations not entailingdeprivation of possession
“The owner shall have the right to claim a remedy in respect of any violated rights, even where such violations have not entailed the deprivation of possessions .”
Article 148 Protection of rights of persons in possession who are not owners
“The rights stipulated in Articles 142 to 1 47 of the present Code shall also vest in a person who, even though he may not be the owner of a property, he or she is in possession of the property in accordance with the law or a contract.”
Article 571 - 3 Law applicable to the right of ownership
“The right of ownership of the property in question shall be determined in accordance with the law of the country in which it is situated.
Subject to any contrary provision of the legislation of the USSR and the Azerbaijan SSR, a right of ownership of the property in question shall be created or terminated in accordance with the law of the country in which the property was situated when an action or other circumstance took place which served as a basis for the creation or termination of the right of ownership.”
Article 571 - 4 Law applicable to obligations created following the infliction of damage
“The rights and duties of the parties in respect of obligations deriving from the infliction of damage shall be determined in accordance with the law of the country where an action or other circumstance took place which served as a basis for claims for compensation for loss.”
90. Provisions of the Civil Code in force from 1 September 2000
Article 21 Compensation of Losses
“21.1 A person entitled to claim full recovery of losses may claim full recovery of the losses inflicted on him, unless a smaller amount has been stipulated by law or by a contract.
21.2 Losses shall mean the expenses which the person whose right has been violated has incurred or will have to incur in order to restore the violated right, the loss or the damage inflicted to his or her property (the compensatory damage), and the profits which he or she would have gained under the ordinary conditions of civil transactions if the right had not been violated (the missed profit).”
Article 1100 Responsibility for losses caused by State orlocal self-government bodies or their officials
“Losses inflicted upon an individual or legal entity as a result of illegal action or omissions on the part of State or local self-government bodies or their officials, including the adoption by the State or local self-government body of an unlawful measure, shall entitle the individual to compensation from Azerbaijan or the relevant municipality.”
91. Provisions of the Code of Civil Procedure in force before 1 June 2000
Article 118 Lodging of claims at the defendant ’ s place of residence
“Claims shall be lodged with a court at the defendant ’ s place of residence.
Claims against a legal entity shall be lodged at its address or at the address of property belonging to it.”
Article 119 Jurisdiction of the claimant ’ s choice
“... Claims for compensation for damage inflicted upon the property of a citizen or legal entity may also be lodged at the place where the damage was inflicted.”
92. Provisions of the Code of Civil Procedure in force from 1 June 2000
Article 8 Equality before the law and courts
“8.1 Justice in respect of civil cases and economic disputes shall be carried out in accordance with the principle of equality for all before the law and courts.
8.2 Courts shall adopt an identical approach towards all persons participating in the case irrespective of race, religion, gender, origin, property status, business position, beliefs, membership of political parties, trade unions and other social associations, place of location, subordination, type of ownership, or any other grounds not specified by legislation.”
Article 307 Cases concerning the establishment of facts of legal significance
“307.1 Courts shall establish the facts on which the origin, change or termination of the personal and property rights of physical and legal persons depend.
307.2 Courts shall hear cases relating to the establishment of the following facts:
307.2.6 in respect of the right of ownership, the fact of possession, use or disposal of immovable property ...”
Article 309 Lodging an application
“309.1 Applications concerning the establishment of facts of legal significance shall be lodged with a court at the applicant ’ s place of residence.
309.2 In respect of the right of ownership, applications concerning the establishment of the fact of possession, use or disposal of immovable property shall be lodged with a court at the place where the immovable property is situated.”
Article 443 Jurisdiction of the Azerbaijani courtsrelating to cases involving foreigners
“443.0 Azerbaijani courts shall have the right to hear the following cases involving foreigners:
443.0.6 where, in cases relating to the compensation for losses for damage inflicted on property, the action or other circumstance serving as the ground for lodging the claim for compensation for losses has occurred on Azerbaijani territory.”
IV. DECLARATION MADE BY THE RESPONDENT STATE UPON RATIFICATION OF THE CONVENTION
93. The instrument of ratification deposited by Azerbaijan on 15 April 2002 contains the following declaration:
“The Republic of Azerbaijan declares that it is unable to guarantee the application of the provisions of the Convention in the territories occupied by the Republic of Armenia until these territories are liberated from that occupation .. .”
94. Article 42 of the Regulations annexed to Convention (IV) respecting 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. [1] 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 [2], 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 [3].
95. 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) [4] ) that applies to any kind of territory.
VI. RELEVANT UNITED NATIONS AND COUNCIL OF EUROPE MATERIAL
96. 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 ), also 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.
“ 21.1 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.
97. Council of Europe bodies have repeatedly addressed issues of the restitution of property to 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
98. 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 emphasised 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
99. 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
100. 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; ”
101. The applicant died in 2009. In its decision on the admissibility of the present case, the Court noted that his widow, Ms Lena Sargsyan, and their children, Vladimir, Tsovinar and Nina Sargsyan, had expressed their wish to continue the proceedings before the Court and were entitled to do so ( see Sargsyan v. Azerbaijan (dec.) [GC], no. 40167/06, §§ 1 and 51, 14 December 2011).
102. Subsequently, the applicant ’ s representative stated that Ms Nina Sargsyan did not wish to pursue the application. The applicant ’ s widow, Ms Lena Sargsyan, died in January 2014. Mr Vladimir and Ms Tsovinar Sargsyan, the applicant ’ s son and daughter, wish to continue the proceedings before the Court. The Court has already held that they are entitled to do so and sees no reasons to deviate from this position.
103. Furthermore, the Court reiterates that, in its decision on the admissibility of 14 December 2 011 in the present case, it had dismissed the following objections raised by the Government: the objection based on the Government ’ s declaration deposited with the instrument of ratification and the objections concerning the lack of jurisdiction ratione temporis and failure to respect the six-month rule ( see Sargsyan (dec.), cited above, §§ 71, 92 and 147). It had joined the following objections raised by the Government to the merits: firstly, the objection concerning the lack of jurisdiction and responsibility, secondly, the objection that the applicant lacked victim status as far as his complaint concerned the graves of his relatives, and thirdly, the objection concerning the exhaustion of domestic remedies ( ibid., §§ 76, 99 and 111).
104. The Court considers it appropriate to deal with the questions of the exhaustion of domestic remedies and the lack of jurisdiction and responsibility as separate points, while it will deal with the Government ’ s objection regarding the applicant ’ s victim status in respect of his relatives ’ graves when examining the alleged violation of Article 8 of the Convention.
II. EXHAUSTION OF DOMESTIC REMEDIES
105. Article 35 § 1 of the Convention provides as follows:
“ The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
106. The applicant relied on three main arguments in order to show that he was not required to exhaust any domestic remedies.
107. Firstly, he asserted that there were no effective remedies under Azerbaijani law which would be accessible and sufficient in practice. He submitted in particular that the Government had not adduced proof of the existence of such remedies. They had not provided any details in respect of the civil cases allegedly brought before the Azerbaijani courts by ethnic Armenians. The cases individually related to inheritance and had no direct relevance for a person in the applicant ’ s situation. In short, the Government had failed to produce any example of an Armenian claimant obtaining redress in circumstances comparable to the applicant ’ s. In addition, the applicant argued that the position adopted by the Government in the proceedings before the Court was indicative of the outcome of any action the applicant might have brought before the Azerbaijani courts. According to the Government, the relevant domestic authorities did not dispose of any documentary evidence showing that the applicant had had possessions in Gulistan or that he had lived there. The recourse to domestic proceedings in Azerbaijan therefore offered no prospects of success.
108. By way of comparison the applicant referred to the Court ’ s decision in Demopoulos and Others v. Turkey ((dec.) [GC], nos. 46113/99 and 7 others, ECHR 2010 ) in which the Court had developed criteria for assessing the effectiveness of a remedy designed to provide redress for the loss of property and home in the context of an international conflict. None of these criteria was met by the remedies referred to by the Government.
109. Secondly, the applicant submitted that the exhaustion rule was inapplicable in the present case due to the existence of an administrative practice – amounting to a repetition of acts incompatible with the Convention and official tolerance thereof by the State authorities – which would make any attempt to use existing remedies futile. Referring to documents of various United Nations bodies, in particular the Human Rights Committee and the Committee on Economic, Social and Cultural Rights, the applicant asserted that there was no political will on the part of the Government to protect abandoned property of ethnic Armenians, which was often occupied by refugees or internally displaced persons (IDPs), or to provide compensation for it. Moreover, there was a practice of not giving ethnic Armenians access to documentation concerning their property. There were no signs of a change of these practices. In addition, the applicant drew attention to the practical difficulties in pursuing any court case in Azerbaijan. Borders between Armenia and Azerbaijan were closed. As there were no diplomatic relations between Armenia and Azerbaijan, ethnic Armenian refugees or citizens of Armenia were unable to obtain visas except via the consular services in neighbouring countries. Visas were only granted in the context of official visits organised by international organisations or diplomatic missions. Postal services between the two countries were not viable either.
110. Finally, the applicant argued that he was in any case absolved from pursuing any remedies due to his personal circumstances. Having had to flee Gulistan in 1992, he had lost all his property, his home and his source of income and had thus been placed in a situation of insecurity and vulnerability. Moreover, he had been seriously ill since 2004.
111. The Government asserted that, in so far as they had effective control over Azerbaijani territory, which was not the case for Gulistan, there were effective remedies. To start with, Article 29 of the 1995 Constitution guaranteed the right to property. In addition, Article 68 of the Constitution provided for State liability to compensate any damage resulting from illegal actions or omissions of State bodies or their officials. The Civil Code and the Code of Civil Procedure in turn contained more detailed provisions protecting both ownership and possession of property. Adequate procedures were in place to enable both citizens and foreigners to bring an action before the courts of Azerbaijan with regard to any damage or loss suffered on the territory of Azerbaijan (for a detailed description, see the relevant domestic law, paragraphs 88 - 92 above). The Government disputed the allegation that an administrative practice existed which would render the use of existing remedies futile.
112. In support of their position, the Government submitted statistics by the Ministry of Justice concerning cases brought by ethnic Armenians: for instance, between 1991 and 2006 the courts of first instance in Baku examined and delivered judgments in 243 civil cases brought by ethnic Armenians, 98 of which related to housing disputes. Furthermore, the Government submitted copies of judgments in two cases concerning inheritance, in which decisions in favour of ethnic Armenians living abroad were given by the appellate courts. The case of Mammadova Ziba Sultan gizi v. Mammadova Zoya Sergeyevna and Mammadov Farhad Tarif oglu (judgment of the Chamber of Civil Cases of the Court of Appeal of the Republic of Azerbaijan of 24 May 2007) concerned an inheritance dispute over property, in which the defendants were the ethnic Armenian spouse and son of the deceased, who were both living in the United States of America. The Court of Appeal overturned the judgment of the Court of First Instance dismissing its assessment that the defendants had to be considered as heirs in bad faith. In Sinyukova, Korovkova and Zaimkina ( “ Chagaryan ”, judgment of the Chamber of Civil Cases of the Shaki Court of Appeal of 7 November 2007), the Court of Appeal decided that the State Notary Office of Mingachevir city had to issue an inheritance certificate in respect of an apartment to the three claimants, daughters of an ethnic Armenian living abroad, as they had to be considered as having made their declaration of inheritance in time. While conceding that these cases did not concern situations which were comparable to the applicant ’ s case, they demonstrated, in the Government ’ s view, that claims of Armenians relating to property and other protected rights could be effectively enforced in the Azerbaijani legal system.
113. The Government therefore concluded that they had shown that effective remedies existed. It was therefore for the applicant to demonstrate that such remedies were ineffective in the circumstances. However, the applicant had admitted that he had not made any attempt to make use of existing remedies and could therefore not allege that the Azerbaijani legal system had failed to provide him with the requisite protection against the alleged violation of his rights.
3. The Armenian Government, third-party intervener
114. The Armenian Government underlined the applicant ’ s position regarding the existence of an administrative practice in Azerbaijan prohibiting Armenians who had fled during the conflict or any other person of Armenian origin from returning to or visiting Azerbaijan.
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 in the Convention 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, cited above, § 69, 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.
“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.”
117. Turning to the present case, the Court observes that the application of Article 35 § 1 of the Convention has to be assessed against the general background of the Nagorno-Karabakh conflict. While the military phase of the conflict ended with the Ceasefire Agreement in May 1994, no peace treaty has been concluded to date. It is not in dispute that there are no diplomatic relations between Armenia and Azerbaijan and that borders are closed. Moreover, it appears that postal services are not viable between the two countries. In such a situation it must be recognised that there may be obstacles to the proper functioning of the system of the administration of justice. In particular, there may be considerable practical difficulties in bringing and pursuing legal proceedings in the other country (see, mutatis mutandis, Akdivar and Others, cited above, § 70).
118. The Court observes that the Government have described the general scheme of protection of property and of compensation for unlawful acts or omissions as laid down in the Constitution and the Civil Code. However, they have failed to explain how these provisions would apply in the specific context where a person in the applicant ’ s situation, namely an Armenian refugee who had to leave his or her property and home in the context of the Nagorno ‑ Karabakh conflict, wishes to claim restitution of property or compensation for the loss of its enjoyment. The Government have submitted statistics on civil cases which were introduced by ethnic Armenians and decided by the Azerbaijani courts. Apart from stating that the cases concerned housing disputes, the Government did not provide any details regarding the nature of the claims examined or the outcome of the proceedings. Turning to the two judgments from 2007 which the Government submitted by way of example, the Court notes that they both concerned inheritance proceedings and did not relate to claims for loss of access to and enjoyment of property and/or home of a person displaced in the context of the Nagorno-Karabakh conflict. In fact, the Government have not provided a single example of a case in which a person in the applicant ’ s situation had been successful before the Azerbaijani courts.
119. Consequently, the Court considers that the Government have failed to discharge the burden of proving the availability to the applicant of a remedy capable of providing redress in respect of his Convention complaints and offering reasonable prospects of success. It is therefore not necessary to determine whether, as alleged by the applicant, there is an administrative practice on the part of the Azerbaijani authorities which would prevent the applicant from making use of existing remedies. Similarly, as no effective remedies have been shown to exist, it is not necessary to examine the effect that the alleged lack of effective control over the area in issue may have on the operation of domestic remedies.
120. The Court therefore dismisses the Government ’ s objection concerning the exhaustion of domestic remedies.
III. JURISDICTION AND RESPONSIBILITY OF AZERBAIJAN UNDER ARTICLE 1 OF THE CONVENTION
121. The applicant pointed out that Gulistan was within the internationally recognised territory of Azerbaijan. It followed that the onus was on the Government to rebut the presumption of jurisdiction in relation to the area of Gulistan for the period between 15 April 2002 and the present day. In the applicant ’ s view, the Government had failed to produce such proof as they had not shown that they did not exercise control over Gulistan. He pointed out that the Government ’ s position concerning the factual situation had been somewhat inconsistent, but that they had accepted that Gulistan was not under Armenian control. Consequently, the Government retained full responsibility for securing the applicant ’ s Convention rights.
122. In the alternative, the applicant asserted that, even if it were established that Azerbaijan lacked control over the area in issue, its responsibility would nevertheless be engaged as a result of its remaining positive obligations under Article 1 of the Convention to take diplomatic, economic, judicial and other measures to secure the applicant ’ s Convention rights (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 331 and 333, ECHR 2004-VII). In the applicant ’ s contention, the Government had failed to meet their positive obligations in that, for many years, they displayed a lack of political will to settle the conflict and had not taken any steps to secure the applicant ’ s individual right to return or to be compensated (see paragraph 208 below).
123. The Government accepted that Gulistan was part of the internationally recognised territory of Azerbaijan. In their pleadings at the hearing of 5 February 2014, they asserted that the presumption that a State exercised jurisdiction throughout its territory could be limited not only with regard to areas under occupation by other parties but also with regard to small areas “rendered inaccessible by circumstances”. Gulistan was such an area. It was on the Line of Contact, meaning that it was surrounded by armed forces of Azerbaijan on one side (in the north and east) and of Armenia on the other side (in the south and west) and was not under the effective control of either side. They pointed out that the village was within the shooting range of the Armenian positions situated on a rising slope above the river. The Azerbaijani Government was thus unable to exercise its legitimate authority in the area.
124. The Government ’ s main line of argument therefore was that they were not responsible under Article 1 of the Convention in the primary sense of that provision. As a dispossessed sovereign they had only limited responsibility, namely to fulfil their positive obligation to take all measures that were in their power to take and in accordance with international law ( see Ilaşcu and Others, cited above, § 331). They argued that such positive obligations depended on the factual circumstances of the case and were not to be construed in such a way as to impose a disproportionate burden on the State ( ibid., § 332). The Government asserted that they had taken all general and individual measures they could be expected to take (see paragraph 210 below).
3. The Armenian Government, third-party intervener
125. The Armenian Government maintained their position that Azerbaijan had full, effective control over Gulistan. Referring to their submissions in respect of the situation obtaining in Gulistan (see paragraphs 50 - 53 above) and to the evidence they had submitted (see paragraphs 69 - 71 above), they asserted in particular that the Azerbaijani armed forces had military positions in the village itself and on its outskirts, while “NKR” forces were stationed on the opposite side of the gorge.
1. Relevant case-law principles in respect of the presumption of territorial jurisdiction
126. The relevant principles have been set out by the Court in Assanidze v. Georgia [GC], no. 71503/01, §§ 137-43, ECHR 2004 ‑ II, and subsequently in Ilasçu and Others (cited above, §§ 311-13, and §§ 333 ‑ 35).
127. In Assanidze, the Court applied a “presumption of competence” or, in other words, a presumption of jurisdiction in respect of a State ’ s territory. The relevant paragraphs of that judgment read as follows.
“137. Article 1 of the Convention requires the States Parties to ‘ secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention ’. It follows from this provision that the States Parties are answerable for any violation of the protected rights and freedoms of anyone within their ‘ jurisdiction ’ – or competence – at the time of the violation.
139. The Ajarian Autonomous Republic is indisputably an integral part of the territory of Georgia and subject to its competence and control. In other words, there is a presumption of competence. The Court must now determine whether there is valid evidence to rebut that presumption.
140. In that connection, the Court notes, firstly, that Georgia has ratified the Convention for the whole of its territory. Furthermore, it is common ground that the Ajarian Autonomous Republic has no separatist aspirations and that no other State exercises effective overall control there (see, by converse implication, Ilaşcu and Others v. Moldova and Russia (dec.) [GC], no. 48787/99, 4 July 2001, and Loizidou v. Turkey (preliminary objections), 23 March 1995, Series A no. 310 ). On ratifying the Convention, Georgia did not make any specific reservation under Article 57 of the Convention with regard to the Ajarian Autonomous Republic or to difficulties in exercising its jurisdiction over that territory. Such a reservation would in any event have been ineffective, as the case-law precludes territorial exclusions (see Matthews v. the United Kingdom [GC], no. 24833/94, § 29, ECHR 1999-I) other than in the instance referred to in Article 56 § 1 of the Convention (dependent territories).
142. Thus, the presumption referred to in paragraph 139 above is seen to be correct. Indeed, for reasons of legal policy – the need to maintain equality between the States Parties and to ensure the effectiveness of the Convention – it could not be otherwise. But for the presumption, the applicability of the Convention could be selectively restricted to only parts of the territory of certain States Parties, thus rendering the notion of effective human rights protection underpinning the entire Convention meaningless while, at the same time, allowing discrimination between the States Parties, that is to say beween those which accepted the application of the Convention over the whole of their territory and those which did not.
143. The Court therefore finds that the actual facts out of which the allegations of violations arose were within the ‘ jurisdiction ’ of the Georgian State (see Bertrand Russell Peace Foundation Ltd v. the United Kingdom, no. 7597/76, Commission decision of 2 May 1978, Decisions and Reports (DR) 14, pp. 117 and 124) within the meaning of Article 1 of the Convention. ”
128. In Ilasçu and Others (cited above), the Court further elaborated on the presumption of jurisdiction. The relevant paragraphs of that judgment read as follows.
“ 311. It follows from Article 1 that member States must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their ‘ jurisdiction ’.
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.
312. The Court refers to its case-law to the effect that the concept of ‘ jurisdiction ’ for the purposes of Article 1 of the Convention must be considered to reflect the term ’ s meaning in public international law (see Gentilhomme and Others v. France, nos. 48205/99, 48207/99 and 48209/99, § 20, judgment of 14 May 2002; Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, §§ 59-61, ECHR 2001 ‑ XII; and Assanidze v. Georgia [GC], no. 71503/01, § 137, ECHR 2004-II).
From the standpoint of public international law, the words ‘ within their jurisdiction ’ in Article 1 of the Convention must be understood to mean that a State ’ s jurisdictional competence is primarily territorial (see Banković and Others, cited above, § 59), but also that jurisdiction is presumed to be exercised normally throughout the State ’ s territory.
This presumption may be limited in exceptional circumstances, particularly where a State is prevented from exercising its authority in part of its territory. That may be as a result of military occupation by the armed forces of another State which effectively controls the territory concerned (see Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310, and Cyprus v. Turkey [ [GC], no. 25781/94 ], §§ 76-80 [, ECHR 2001 ‑ IV ] and also cited in the above-mentioned Banković and Others decision, §§ 70 ‑ 71), acts of war or rebellion, or the acts of a foreign State supporting the installation of a separatist State within the territory of the State concerned.
313. In order to be able to conclude that such an exceptional situation exists, the Court must examine on the one hand all the objective facts capable of limiting the effective exercise of a State ’ s authority over its territory, and on the other the State ’ s own conduct. The undertakings given by a Contracting State under Article 1 of the Convention include, in addition to the duty to refrain from interfering with the enjoyment of the rights and freedoms guaranteed, positive obligations to take appropriate steps to ensure respect for those rights and freedoms within its territory (see, among other authorities, Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V).
Those obligations remain even where the exercise of the State ’ s authority is limited in part of its territory, so that it has a duty to take all the appropriate measures which it is still within its power to take.
333. The Court considers that where a Contracting State is prevented from exercising its authority over the whole of its territory by a constraining de facto situation, such as obtains when a separatist regime is set up, whether or not this is accompanied by military occupation by another State, it does not thereby cease to have jurisdiction within the meaning of Article 1 of the Convention over that part of its territory temporarily subject to a local authority sustained by rebel forces or by another State.
Nevertheless, such a factual situation reduces the scope of that jurisdiction in that the undertaking given by the State under Article 1 must be considered by the Court only in the light of the Contracting State ’ s positive obligations towards persons within its territory. The State in question must endeavour, with all the legal and diplomatic means available to it vis-à-vis foreign States and international organisations, to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention.
334. Although it is not for the Court to indicate which measures the authorities should take in order to comply with their obligations most effectively, it must verify that the measures actually taken were appropriate and sufficient in the present case. When faced with a partial or total failure to act, the Court ’ s task is to determine to what extent a minimum effort was nevertheless possible and whether it should have been made. Determining that question is especially necessary in cases concerning an alleged infringement of absolute rights such as those guaranteed by Articles 2 and 3 of the Convention.
335. Consequently, the Court concludes that the applicants are within the jurisdiction of the Republic of Moldova for the purposes of Article 1 of the Convention, but that its responsibility for the acts complained of, committed in the territory of the ‘ MRT ’ [ ‘ Moldovan Republic of Transdniestra ’ ], over which it exercises no effective authority, is to be assessed in the light of its positive obligations under the Convention.”
129. It follows from the above-cited case-law that jurisdiction within the meaning of Article 1 of the Convention is presumed to be exercised throughout a Contracting State ’ s territory. The undertaking given by a Contracting State under Article 1 normally includes two aspects, namely on the one hand a negative duty to refrain from interfering with the enjoyment of the rights and freedoms guaranteed and on the other hand positive obligations to take appropriate steps to ensure respect for those rights and freedoms within its territory ( see Ilasçu and Others, cited above, § 313).
130. Even in exceptional circumstances, when a State is prevented from exercising authority over part of its territory, due to military occupation by the armed forces of another State, acts of war or rebellion or the installation of a separatist regime within its territory, it does not cease to have jurisdiction within the meaning of Article 1 of the Convention ( ibid., § 333; see also Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, § 109, 19 October 2012 ).
131. However, in cases in which a State is prevented from exercising its authority in part of its territory, its responsibility under the Convention is limited to discharging positive obligations ( see Ilasçu and Others, cited above, § 335). These relate both to measures needed to re-establish control over the territory in question, as an expression of its jurisdiction, and to measures to ensure respect for the applicant ’ s individual rights (ibid., § 339). Under the first head, the State has a duty to assert or reassert its sovereignty over the territory and to refrain from any acts supporting the separatist regime ( ibid., §§ 340-45). Under the second head the State must take judicial, political, or administrative measures to secure the applicant ’ s individual rights ( ibid., § 346).
2. Application of these principles to the present case
(a) The Court ’ s establishment of the facts
132. In the present case the situation pertaining in Gulistan is in dispute between the parties. The relevant period to be considered runs from 15 April 2002, when the Convention came into force in respect of Azerbaijan, to the present day.
133. In establishing the facts set out below, the Court has had regard to the parties ’ written observations and oral pleadings, to the maps of Gulistan and its surroundings, the DVDs containing footage of the area and other relevant evidence submitted by the parties. It also had regard to the AAAS report on Gulistan based on the interpretation of high-resolution satellite imagery.
134. The Court notes that the parties concur on a number of points: it is not in dispute that Gulistan is situated on the internationally recognised territory of Azerbaijan. The village lies in a V -shaped valley on the north bank of the River Indzachay. Azerbaijani military positions are on the north bank of the river, while “NKR” military positions are on the south bank of the river. There are no civilians in the village. The surroundings of the village, at least, are mined and ceasefire violations occur frequently.
135. The parties ’ submissions differ, however, in respect of a certain number of other points. The most important discrepancy concerns the question whether or not there are Azerbaijani military positions in the village. The distance of both sides ’ military positions from the village and the question whether the village itself is mined are also in dispute.
136. It follows from the available material and in particular from the maps submitted by each of the parties and the Armenian Government that the whole of the village as well as the Azerbaijani military positions are on the north bank of the River Indzachay, which constitutes a natural dividing line. The “NKR” positions are on the south bank of the river, the closest being on a slope opposite the village.
137. Regarding the disputed question of whether there is any Azerbaijani military presence in the village itself, the Court notes that there are a number of elements which indicate a presence of Azerbaijani positions and thus of Azerbaijani soldiers in the village. The AAAS report based on the interpretation of satellite images from 2005, 2009 and 2012 indicates that there are trenches in or, at the very least, on the edges of the village. These trenches can be seen clearly in the 2005 and 2009 images, but are less clearly distinguishable in the 2012 image. Since the village is on the north bank of the river and there are only Azerbaijani positions there, the Court considers it sufficiently established, based on the available evidence, that the trenches form part of Azerbaijani positions. This also provides an indication of the presence of military Azerbaijani personnel given that trenches need to be maintained (as follows from the AAAS report according to which trenches fell into disuse in the period between 2009 and 2012 and are therefore less clearly visible). In that connection the Court reiterates that it was not in dispute that there were no civilians in the village. In addition, it appears again from the AAAS report and from the DVD submitted by the third-party Government in 2012 that the territory north of the village and thus access routes to it are under the control of Azerbaijani armed forces. Further indications are provided by the DVD submitted by the applicant in 2008, on which smoke can be seen rising from the chimneys of some houses and a man is walking between houses in ruins.
138. While there are certain indications of Azerbaijani military presence in the village itself, the Court does not dispose of sufficient elements to establish whether there have been Azerbaijani forces in Gulistan throughout the whole period falling within its competence ratione temporis, namely from 15 April 2002 until the present. It is important to note, however, that it has not been alleged and there is no indication in the material before the Court that the “NKR” has or had any positions or troops on the north bank of the river let alone in the village of Gulistan itself during the period under examination.
(b) Assessment of the legal significance of the facts
139. Given that Gulistan is situated on the internationally recognised territory of Azerbaijan, the presumption of jurisdiction applies (see Ilasçu and Others, cited above, § 312). In the Court ’ s view it is thus for the Government to show that exceptional circumstances exist which would limit their responsibility under Article 1 of the Convention.
140. The Court observes that a limitation of a State ’ s responsibility on its own territory to discharging positive obligations has only been accepted in respect of areas where another State or separatist regime exercises effective control. In Ilasçu and Others, the Court found that the Moldovan Government did not exercise authority over part of its territory, namely that part which is under the effective control of the “ Moldovan Republic of Transdniestria ” (the “MRT”) (cited above, § 330). The Court relied on the same finding in Ivanţoc and Others v. Moldova and Russia (no. 23687/05, § 105, 15 November 2011). In Catan and Others (cited above, § 109 ), the Court also held that the Republic of Moldova had no authority over the part of its territory to the east of the River Dniester, which is controlled by the “MRT”. In contrast, in Assanidze (cited above, § § 139-40) the Court considered as a relevant fact that the Ajarian Autonomous Republic had no separatist aspirations and that no other State exercised effective overall control there.
141. In the above Moldovan cases, it was not in dispute that the territory in question, namely Transdniestria, was under the effective control of the “MRT”. In Convention terms Russia was held to have jurisdiction over the area controlled by the “MRT” on account of exercising effective authority or at least decisive influence over the “MRT” and securing its survival by virtue of military, economic, financial and political support and therefore to be responsible for the violations found (see Ilasçu and Others, cited above, §§ 392-94; Ivanţoc and Others, cited above, §§ 118-20; and Catan and Others, cited above, § 122).
142. The present case differs from the above-mentioned cases: Gulistan is on the frontline between Azerbaijani and “NKR” forces and it is in dispute whether Azerbaijan has effective control of the village. The Court notes that, on the basis of its case-law, the Government would have to show that another State or separatist regime has effective control over Gulistan where the alleged violations of the Convention took place.
143. At this point the Court considers it useful to reiterate that Azerbaijan has deposited a declaration with its instrument of ratification expressing that it was “unable to guarantee the application of the provisions of the Convention in the territories occupied by the Republic of Armenia” (see paragraph 93 above). In its decision on the admissibility of the present case, the Court has held that the declaration was not capable of restricting the territorial application of the Convention to certain parts of the internationally recognised territory of Azerbaijan ( see Sargsyan (dec.), cited above, §§ 63-65) nor did it fulfil the requirements of a valid reservation ( ibid., §§ 66-70).
144. The Court notes that under international law (in particular Article 42 of the 1907 Hague Regulations) a territory is considered occupied when it is actually placed under the authority of a hostile army, “actual authority” being widely considered as translating to effective control and requiring such elements as presence of foreign troops, which are in a position to exercise effective control without the consent of the sovereign (see paragraph 94 above). On the basis of all the material before it and having regard to the above establishment of facts, the Court finds that Gulistan is not occupied by or under the effective control of foreign forces as this would require a presence of foreign troops in Gulistan.
145. In fact, it appears that the Government have not maintained their initial position that they had no effective control over Gulistan. Rather they argued that it was in a disputed area, pointing out that it was surrounded by mines, encircled by opposing military positions on either side of the river and within the shooting range of the Armenian forces.
146. In essence the Government argued that the Court ’ s case-law developed in Ilasçu and Others and subsequent cases, which accepts that a State that has lost effective control over part of its territory to another State or separatist regime, has limited responsibility under the Convention, should equally be applied to disputed zones or, as they expressed it at the hearing of 5 February 2014, “areas which are rendered inaccessible by the circumstances”.
147. In addressing this question the Court must bear in mind the special character of the Convention as a constitutional instrument of European public order ( ordre public ) for the protection of individual human beings and its role, as set out in Article 19 of the Convention “to ensure the observance of the engagements undertaken by the High Contracting Parties” (see Loizidou v. Turkey (preliminary objections), 23 March 1995, § § 75 and 93, Series A no. 310, and Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 141, ECHR 2011 ). When Azerbaijan ratified the Convention on 15 April 2002, the whole of its territory entered the “Convention legal space”.
148. In the above-cited cases concerning the Republic of Moldova the acceptance that the territorial State had only limited responsibility under the Convention was compensated by the finding that another Convention State exceptionally exercised jurisdiction outside its territory and thus had full responsibility under the Convention. In contrast, in the present case it has not been established that Gulistan is occupied by the armed forces of another State or that it is under the control of a separatist regime. In such circumstances the Court, taking into account the need to avoid a vacuum in Convention protection, does not consider that the Government have demonstrated the existence of exceptional circumstances of such a nature as to qualify their responsibility under the Convention.
149. The Court is therefore not convinced by the Government ’ s argument. The exception developed in Ilasçu and Others (cited above, §§ 312-13), namely the limitation of the territorial State ’ s responsibility in respect of parts of its internationally recognised territory which are occupied or under the effective control of another entity can therefore not be extended to disputed areas as was suggested by the Government.
150. In fact, the situation at stake in the present case is more akin to the situation in Assanidze (cited above, § 146) in that, from a legal point of view, the government of Azerbaijan has jurisdiction as the territorial State and full responsibility under the Convention, even though it may encounter difficulties at a practical level in exercising theiitsr authority in the area of Gulistan. In the Court ’ s view such difficulties will have to be taken into account when it comes to assessing the proportionality of the acts or omissions complained of by the applicant.
151. In conclusion, the Court finds that the facts out of which the alleged violations arise are within the “jurisdiction” of Azerbaijan within the meaning of Article 1 of the Convention and are capable of engaging the responsibility of the Government. Consequently, it dismisses their objection concerning lack of jurisdiction and responsibility which had been joined to the merits in the admissibility decision ( see Sargsyan (dec.), cited above, § 76).
IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
152. The applicant complained that the denial of his right to return to the village of Gulistan and to have access to, control, use and enjoy his property or to be compensated for its loss amounted to a continuing violation of Article 1 of Protocol No. 1, which reads as follows :
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
153. The Government contested the applicant ’ s position, advancing three main lines of argument: they asserted, firstly, that although Gulistan was on the internationally recognised territory of Azerbaijan and thus within Azerbaijan ’ s jurisdiction within the meaning of Article 1 of the Convention, they did not have sufficient control over the area to be held responsible for the alleged violation. Secondly, they argued that the applicant had failed to show that he had actually had a house and land in Gulistan. Thirdly, the Government submitted that even if the Court were to dismiss their argument on the first two points, there had been no violation of the applicant ’ s rights as they had complied with their obligations under the Convention.
A. Whether the applicant had “possessions” in Gulistan
154. The applicant maintained that he had submitted sufficient evidence to show that he had lived in Gulistan with his family until June 1992 and had owned a house and land of some 2,100 sq. m and other possessions there. He referred in particular to the technical passport of the house, established in May 1991, and to the plan of the house, pointing out that he had submitted both documents already when he lodged the application.
155. He asserted that he had obtained the land by a decision of the village council in the early 1960s granting permission to divide his father ’ s plot of land between him and his brother. He contested the Government ’ s assertion that the village council had no power to allocate land. He noted, firstly, that the Government referred to the 1970 Land Code, according to which the power to allocate land was vested in the Executive Committees of the Soviet of the People ’ s Deputies of the districts and cities. In the early 1960 s the village councils had power to allocate land. They also had to keep a register, recording among other data the division of property of households in the village. These powers were regulated by the Charter on Village Councils (see paragraph 82 above ) which had come into force on 23 April 1958 and had been in force at the material time, namely in the early 1960 s. Section 2, subsection 9(j), of the Charter on Village Councils empowered the village council to allocate State-owned land to citizens for individual construction within the borders of the village. Pursuant to section 2, subsection 19 (e) of the Charter the village council had the power to register the division of land of households in the village.
156. Furthermore, the applicant repeated that the “technical passport” which he had already submitted with the application was a duly established, valid document and was sufficient proof of his right to the house and land. He contested the Government ’ s assertion that the technical passport was deficient, addressing each of the points raised by the Government.
157. In so far as the Government had asserted that the technical passport was deficient in that it lacked a reference to a primary title of ownership, the applicant argued that no such reference was required in his case. While he agreed with the Government that the 1985 Instructions (see paragraph 81 above) applied to the registration process, he maintained that the registration of property in rural areas was governed by Article 2. 3 of the Instructions, according to which the basis for registration were “the list of homesteads, abstracts from them, [or] statements from the Village or Regional Executive Committee of the Soviet of People ’ s Deputies”. He maintained that the list of homesteads (or lists of households as the term was also sometimes translated) meant the register of the village council. Finally, he noted that the technical passport submitted by him had been established on the basis of the relevant sample form provided by the Central Statistics Department of the USSR. That form did not require making a reference to any primary title of ownership.
158. Turning to the Government ’ s argument that the technical passport was deficient as the field “ description of the size of the land according to the official documents” was empty, the applicant asserted that the technical passport had been drawn up by officials from the Bureau of Technical Inventory of the Shahumyan region, who would not have signed it had it been incomplete. Moreover, he submitted technical passports which had been issued to other former villagers of Gulistan in 1991 and in which the said field was also empty, and argued that his technical passport corresponded to the relevant registration practice at the time.
159. Finally, the Government had argued that the technical passport, which was dated 20 May 1991, might be a forgery as the stamp used was still that of the Azerbaijan SSR and referred to the Shahumyan region, although the State had been renamed the Republic of Azerbaijan and the former Shahumyan region had been incorporated into the Goranboy region in February 1991. In reply, the applicant referred to his own statement of 10 July 2006 and the statements of a number of former neighbours and friends from Gulistan submitted in 2010, who all confirmed that the whole Shahumyan region, which was inhabited by a majority of Armenians and of which Gulistan was part, had been subjected to a blockade by Azerbaijan from 1989 to 1992. On account of the blockade, the whole region was cut off: television stations had been bombed and there was no electricity and villagers and even officials in Gulistan were not aware and had not received any information by the authorities that the Azerbaijan SSR and the Shahumyan region had been renamed. Moreover, the applicant observed that the Government only claimed that the new stamp designating the Republic of Azerbaijan should have been used, but that they had not submitted any evidence that the stamps had actually been changed at the time.
160. Furthermore, in reply to the Court ’ s question relating to a possible contradiction in the application form regarding the question whether or not the applicant ’ s house had been destroyed in 1992, the applicant explained that the contradiction stemmed from confusion between his own and his parents ’ house. The applicant pointed out that the application form, prepared by his representative, had been based on his statement drawn up on 10 July 2006. In that statement he did not speak about the destruction of his own house but used the phrase, “My mother stayed in the village of Gulistan and our house was destroyed”. It was common in the village to refer to the parents ’ house as one ’ s own house.
161. In respect of the current state of the house, the applicant submitted that it was difficult to obtain information, as it was not possible to return to Gulistan. At best it was possible to view the village from the “NKR” border with binoculars. In that connection, he referred to the statements of three former villagers of March 2012 (see paragraph 59 above). The applicant submitted an additional statement of 12 August 2013 by a former villager from Gulistan, who reported that he had carried out construction work on a site in the “NKR” near Gulistan in 2010 and had once gone to a viewpoint and looked at the village with binoculars and had been able to distinguish the applicant ’ s house. According to him its walls were still standing, but the roof was dilapidated.
162. In sum, the applicant maintained that the technical passport submitted by him was sufficient proof of his right to “use, possess and enjoy” the house in question, but conceded that under the law in force at the time of his displacement he had not been entitled to sell the house. However, he could have expected that his rights would be transformed into private property as provided for by the 1991 Law on property. To his knowledge his rights had not been annulled and he was therefore still legally entitled to the property in issue.
163. The Government asserted that the burden was on the applicant to prove, beyond reasonable doubt, that he was the owner or had title to the property which was the subject of his application.
164. The Government submitted that it could not be verified whether the applicant had actually lived in Gulistan or whether he had any possessions there. No documents relating to the applicant or the plot of land, house or other buildings allegedly owned by him were available in the Goranboy regional archives. Moreover, certain archives of the former Shahumyan region, including of the Civil Registry Office and the Passport Office, had been destroyed during the hostilities. The main document submitted by the applicant, namely the technical passport of the house, was deficient and therefore did not prove that he was the owner of a house and land. His own statements and the statements of witnesses submitted by him contained numerous contradictions, for instance in respect of the number of rooms of the applicant ’ s house and the size of his plot of land, and were thus unreliable in their entirety.
165. In respect of the applicant ’ s alleged property in Gulistan, the Government argued, in the first place, that he had only complained of the house which appeared to have been destroyed before the entry into force of the Convention in respect of Azerbaijan. His complaint therefore fell outside the Court ’ s competence ratione temporis.
166. In so far as the applicant might be understood as complaining in respect of the land, the Government argued that his assertion that he had obtained permission from the village council to divide his father ’ s land was not credible for a number of reasons. The statements of former members of the village council submitted by the applicant were not coherent. According to two statements the village council had divided the plot of the applicant ’ s father between the applicant and his brother, while according to another statement, the village council had taken the decision to allocate land to the applicant. In any case, the procedure described by the applicant was not in accordance with the administrative structures and laws in force in the 1960s: the village council was not entitled to allocate land. In the 1960s, no specific laws, apart from the Constitution, existed on the right to use land. The 1970 Land Code of the Azerbaijan SSR codified the already existing practice: it laid down that only the Executive Committee of the Soviet of the People ’ s Deputies had the power to allocate land for the purpose of constructing private houses. As a rule, the person concerned received an abstract of the decision.
167. There had been no centralised land register in Azerbaijan at the time of the hostilities. The registration and technical inventory of housing facilities had been carried out by the local administrative authorities under the 1985 Instructions, Articles 2. 1 and 2. 2 of which specified which documents constituted primary or secondary evidence of title. The Government maintained that the applicant had not submitted any document which would qualify as primary title of ownership. By way of example the Government mentioned that the decision of the Lachin District Soviet of People ’ s Deputies of 29 January 1974 submitted by one of the applicants in Chiragov and Others v. Armenia ( (dec.) [GC], no. 13216/05, 14 December 2011) constituted such primary evidence.
168. The Government explained that the technical passport was in the first place an “inventory-technical” document. They acknowledged that a technical passport of a house could constitute secondary evidence, as it was normally issued only to persons having a legal title to property. However, the technical passport submitted by the applicant did not constitute evidence of any property rights, as it was deficient and possibly even a forgery for the following reasons.
169. The technical passport lacked a reference to a primary title to the house and land: the Government maintained their submission that as a rule the technical passport would refer to a primary title of ownership, and contested the applicant ’ s position that Article 2. 3 of the 1985 Instructions was applicable. In any case, the “household lists” mentioned in that provision were not identical with the register of the village council.
170. In their submissions of July 2012, the Government advanced a new argument, namely that the technical passport was incomplete as it contained only an indication of the actual size of the land parcel while the field concerning the size of the land parcel according to official documents was empty.
171. As a further new argument the Government asserted in their submissions of July 2012 that the technical passport, which was dated 20 May 1991, carried a stamp of the Azerbaijan SSR/Shahumyan district which was no longer in official use at that time, as the State had been renamed the “ Republic of Azerbaijan ” in February 1991 and the Shahumyan district had been incorporated into the Goranboy region at the same time. The Government alleged that, after the renaming of the Azerbaijan SSR to the Republic of Azerbaijan, the use of old stamps for producing false documents was a frequent occurrence. In addition, they contested the applicant ’ s assertion that the population of the former Shahumyan district had not been aware of the above-mentioned changes. They pointed out that in the application form the applicant himself referred to the merger of the Shahumyan district and a neighbouring district into the new Goranboy district. Finally, the Government pointed out that it was highly unlikely that in May 1991, during a period of rising tension and civil strife, the relevant authorities would still have issued technical passports.
172. In conclusion, the Government asserted that Article 1 of Protocol No. 1 did not apply, as the applicant had failed to submit evidence in respect of his alleged rights.
173. The Government submitted that, if the Court were nonetheless to find that the applicant had rights to the house and/or land, the relevant laws of the Azerbaijan SSR which were still applicable at the time of the hostilities did not provide for private ownership, but allowed citizens to own houses as personal property. Plots of land could be allotted to individuals for their use for an indefinite period of time for purposes such as housing and farming. A person to whom land had been allotted had a right, which was protected by law, to use the land. The 1991 Law on property and the 1992 Land Code of Azerbaijan provided for a possibility to transfer land already allotted to citizens into their private ownership. Detailed rules on the privatisation of land plots including individual houses allotted to citizens were introduced later, by the 1996 Law on land reform.
174. The Government had previously submitted that no laws had been adopted in respect of property abandoned by Armenians who left Azerbaijan due to the conflict. In their submissions of September 2013, they modified this statement by submitting that the 1991 Order (see paragraph 83 above) had been introduced to address a practice of property swaps (Armenians leaving Azerbaijan exchanging their property with Azerbaijanis leaving Armenia, Nagorno-Karabakh or the surrounding Armenian-held regions). However, the applicant ’ s alleged property was not concerned.
(c ) The Armenian Government, third- party intervener
175. The Armenian Government agreed with the arguments submitted by the applicant.
(a) Applicable principles on assessment of claims relating to property and homes of displaced persons
176. 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 other conflict situations.
177. 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 thereof ( §§ 42 ‑ 47).
178. 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 to rebut convincingly, 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.”
179. 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.”
180. 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.
181. 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, § 293, 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.
182. 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. ”
183. 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 the above-mentioned case of Kerimova and Others ). 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 ).
184. In sum, the Court ’ s case-law has developped 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 96 above).
(b ) Application of the above principles to the present case
185. The Court will first address the Government ’ s argument that the applicant ’ s complaint only related to the house which appeared to have been destroyed before the entry into force of the Convention. The Court has already noted in the decision on the admissibility of the present case that, from the beginning, the applicant also referred to the plot of land on which the house was situated ( see Sargsyan (dec.), cited above, § 88). It therefore understands the applicant ’ s complaint as encompassing both the house and the land.
186. The parties ’ submissions focused on two issues: firstly, the probative value of the “technical passport” submitted by the applicant and, secondly, the question whether the village council, from which the applicant claimed to have obtained the land and permission to build a house in the early 1960s, had at that time been competent to allocate land.
187. In respect of the second issue, the Court notes that the Government relied on the general administrative structure of the Azerbaijan SSR when arguing that the village council did not have the power to allocate land. The applicant, for his part, referred to specific provisions of the 1 958 Charter on village councils (see paragraph 82 above), which appear to support his position that the village council could allocate land for the purpose of private construction. However, it will not be necessary for the Court to decide on this issue for the following reasons.
188. It is not contested that a technical passport was, as a rule, only issued to the person entitled to the house. In the present case, the applicant has submitted a technical passport established in his name and relating to a house and land of some 2,100 sq. m in Gulistan, with a detailed plan of the house. In the Court ’ s view the technical passport constitutes prima facie evidence. Provided that the technical passport can be regarded as a valid document, the Court does not consider it necessary to examine the details of the parties ’ submissions on the relevant domestic law of the Azerbaijan SSR in respect of the allocation of land in the early 1960s. The Court will therefore first examine the validity of the technical passport submitted by the applicant. The Court observes that both parties agreed that the registration of houses had been regulated by the 1985 Instructions (see paragraph 81 above ). The Court will address in turn each of the reasons adduced by the Government for finding that the technical passport was deficient or a forgery.
189. In so far as the Government claim that the technical passport did not contain a reference to a primary title of ownership, the Court notes that the parties disagreed as to which provisions of the 1985 Instructions applied in the applicant ’ s case. The Court is not in a position to establish the correct interpretation of the law in force in Azerbaijan in May 1991 when the technical passport was established. It notes that the applicant has at least given a plausible explanation as to why such a reference was not needed in his case. It is also correct, as the applicant pointed out, that the form which was used does not foresee such a reference. Finally, the applicant has submitted copies of technical passports of houses owned by other former villagers from Gulistan, which contain no such reference either.
190. Furthermore, the Government had argued that the field “land parcel size according to official documents” in the technical passport submitted by the applicant was empty. Again, the applicant has given detailed information on how the technical passport was established by officials of the regional Bureau of Technical Inventory and has submitted the copies of technical passports of houses owned by other former villagers from Gulistan, in which this field is also empty.
191. Finally, the Court turns to the Government ’ s assertion that the technical passport carried the wrong stamp. It considers, however, that given the background which pertained in 1991, namely a situation of general civil unrest and the blockade of the Shahumyan region, to which the applicant, members of his family and former villagers already referred in their statements submitted in 2010, long before the Government raised the issue of wrong stamps, the applicant ’ s explanation that the population as well as officials in the region had not been informed by the authorities of the change of name is not without a certain plausibility. Be that as it may, the Court attaches weight to the argument that the Government have not claimed let alone shown that new stamps had actually been provided to the relevant local authorities of the (former) Shahumyan region before May 1991, when the technical passport of the applicant ’ s house was established.
192. In sum, the Court accepts that the technical passport submitted by the applicant constitutes prima facie evidence of title to the house and land, which is similar to evidence it has accepted in many previous cases (see paragraphs 178 - 83 above) and has not been convincingly rebutted by the Government.
193. Furthermore, the Court takes into account that from the beginning the applicant had made coherent submissions, claiming that he had lived in Gulistan until his flight in June 1992 and that he had a house and land there. He submitted a copy of his former Soviet passport and of his marriage certificate, which show that he was born in Gulistan in 1929 and got married there in 1955. The applicant ’ s submissions as to how he obtained the land and the permission to build a house and then did so in the early 1960s with the help of neighbours and friends are supported by statements of a number of family members and former villagers. While the Court takes into account that these are written statements, which have not been tested in cross-examination, it notes that they are rich in detail and tend to demonstrate that the persons concerned have actually lived through the events they described. Given the long lapse of time since the villagers ’ displacement, the Court does not attach decisive importance to the fact that these statements do not corroborate each other in all details, as pointed out by the Government.
194. Last but not least, the Court has regard to the circumstances in which the applicant was compelled to leave when the village came under military attack. It is hardly astonishing that he was unable to take all the documentation with him. Accordingly, taking into account the totality of evidence presented, the Court finds that the applicant has sufficiently substantiated his claim that he had a house and land in Gulistan at the time of his flight in June 1992.
195. Finally, the Court turns to the Government ’ s argument that the house appeared to have been destroyed before the entry into force of the Convention in respect of Azerbaijan on 15 April 2002 and that consequently the complaint, in so far as it related to the house, fell outside the Court ’ s competence ratione temporis. In the admissibility decision in the present case, the Court had noted that it was not clear whether the applicant ’ s house had been destroyed. It went on to say that at that stage it was only concerned with examining whether the facts of the case were capable of falling within its jurisdiction ratione temporis, while a detailed examination of the facts and legal issues of the case had to be reserved to the merits stage ( see Sargsyan (dec.), cited above, § 88 ). Having regard to its case-law, the Court considered that the applicant ’ s lack of access to his alleged property, home and the graves of his relatives in Gulistan had to be considered as a continuing situation which the Court had competence to examine since 15 April 2002. It had therefore rejected the Government ’ s objection ratione temporis ( ibid. , §§ 91-92). However, as the Court had reserved a detailed examination of the facts to the merits stage, it still has to determine whether or not the house was destroyed prior to the entry into force of the Convention and, consequently, whether there is a factual basis for the Government ’ s objection ratione temporis in respect of the house. Should the house have been destroyed before the entry into force of the Convention, this would indeed constitute an instantaneous act falling outside the Court ’ s competence ratione temporis (see Moldovan and Others v. Romania (dec.), nos. 41138/98 and 64320/01, 13 March 2001).
196. The Court notes that the applicant ’ s submissions in his application as to whether the house had been destroyed or not were contradictory ( see Sargsyan (dec. ), cited above, § 24). In reply to the Court ’ s request to explain this apparent contradiction, the applicant asserted that there had been some confusion between his house and his parent ’ s house which had arisen when his representative drafted the application on the basis of his written statement of 10 July 2006 in which he had used the phrase, “My mother stayed in the village of Gulistan and our house was destroyed”. The Court notes, firstly, that the said statement was submitted with the application. It accepts that the specific context in which the expression “our house” was used leaves room for different interpretations and that the relevant passage in the application form referring to the destruction of the applicant ’ s house might be the result of a misunderstanding.
197. Having regard to the evidence before the Court, in particular the DVDs submitted by both parties and the Armenian Government, other relevant evidence submitted by the parties and the AAAS report, the Court observes that Gulistan has been deserted since mid-1992 and most buildings in the village are dilapidated, meaning that the outer and inner walls are still standing while roofs have fallen in. In the absence of conclusive evidence that the applicant ’ s house was completely destroyed before the entry into force of the Convention, the Court proceeds from the assumption that it still exists, though in a badly damaged state. In conclusion, there is no factual basis for the Government ’ s objection ratione temporis.
198. In conclusion, the Court finds that the applicant had and still has a house and a plot of land in Gulistan and dismisses the Government ’ s objection that it lacks competence ratione temporis to examine the complaint in respect of the house.
( ii ) Whether the applicant ’ s rights fall under Article 1 of Protocol No. 1
199. The Court will examine next whether the applicant had – and still has – rights to property recognised under domestic law and whether these rights can be regarded as “possessions” within the meaning of Article 1 of Protocol No. 1.
200. The Government explained that under the relevant laws of the Azerbaijan SSR, which were in force at the time of the applicant ’ s displacement, citizens could not have private ownership of houses or land. They could, however, own houses as personal property. Moreover, land could be allotted to citizens for an indefinite period of time for purposes such as farming and housing. While the 1991 Law on property and the 1992 Land Code provided – for the first time – for a possibility to transfer land already allotted to citizens into their private ownership, detailed rules on the privatisation of land including individual houses allotted to citizens were only introduced by the 1996 Law on land reform.
201. The Court therefore notes, firstly, that when the applicant left Gulistan in June 1992, the relevant rules allowing individuals to transform the rights they previously held in respect of land including individual houses had not yet been adopted. It has not been claimed that the applicant has subsequently made use of this possibility. As the rights acquired by him under the old legislation were not rescinded by the enactment of the 1991 Law on property and the 1992 Land Code, the right to the house and land that he possessed at the time of his flight must be assessed with reference to the laws of the Azerbaijan SSR.
202. The Court observes that according to these laws, in particular pursuant to Article 13 of the 1978 Constitution and Article 10. 3 of the 1983 Housing Code, citizens could own residential houses as personal property. Personal property and the right to inherit it were protected by the State. In contrast, all land was owned by the State. Plots of land could be allocated to citizens for specific purposes such as farming and the construction of individual housing. In that case the citizen had a “ right of use ” in respect of the land. This follows again from Article 13 of the 1978 Constitution and Article 4 of the Land Code. The “right of use”, though it obliged the beneficiary to use the land for the purposes for which it had been allocated, was protected by law. This is not contested by the Government. Moreover, the right was inheritable.
203. There is therefore no doubt that the rights conferred on the applicant in respect of the house and land were protected rights which represented a substantive economic interest. Having regard to the autonomous meaning of Article 1 of Protocol No. 1, the applicant ’ s right to the house as personal property and his “right of use” in respect of the land constituted “ possessions” under that provision.
204. The Government submitted that no laws had been enacted in respect of property abandoned by Armenians who left Azerbaijan due to the conflict. They referred to one exception, namely the 1991 Order (see paragraph 83 above) explaining that it addressed the practice of property swaps between Armenians leaving Azerbaijan and Azerbaijanis leaving Armenia or Nagorno-Karabakh and the surrounding provinces. However, they noted that the applicant ’ s property was not concerned.
205. In conclusion, at the time of his displacement from Gulistan, in June 1992, the applicant had rights to a house and land which constituted possessions within the meaning of Article 1 of Protocol No. 1. There is no indication that those rights have been extinguished since, whether before or after the ratification of the Convention by Azerbaijan. The applicant ’ s property rights are thus still valid. Since the applicant accordingly has existing possessions, there is no need to examine whether he also had a “legitimate expectation” to transform his rights into private property as provided for by the 1991 Law on property.
B. Whether there has been a continuing violation of Article 1 of Protocol No. 1
206. The applicant maintained that the denial of his right to return to the village of Gulistan and to have access to, control, use and enjoy his property or to be compensated for its loss amounted to a continuing violation of Article 1 of Protocol No. 1 (see Sargsyan (dec.), cited above, § 149 ). Relying on the Court ’ s case-law relating to northern Cyprus, he argued that he was still the legal owner of his property in Gulistan, but was neither able to return there nor receive any compensation for the interference with his rights.
207. The applicant asserted that, since the entry into force of the Convention in respect of Azerbaijan in 2002, the Government had failed to take any specific steps with a view to restoring the rights of refugees like him, in particular to secure his right to return to his house and land or to be compensated. He observed that the right of refugees and displaced persons to return home voluntarily or to be compensated has constantly been advocated in international documents, including the 2007 Madrid Basic Principles drafted in the framework of the Minsk Group (see paragraph 26 above), UN Security Council resolutions, recommendations of the Parliamentary Assembly of the Council of Europe and the European Parliament.
208. Regarding the nature and extent of the Government ’ s obligations, the applicant suggested that the Court take relevant international standards into account, in particular the UN Principles on Housing and Property Restitution for Refugees and Displaced Persons, also known as the Pinheiro Principles (see paragraph 96 above). In the applicant ’ s view, a range of measures would be available to the Government. Such measures could include creating a property - records body and a process allowing refugees and displaced persons to re-establish legal title to pre-war property and file a claim for its repossession. A further step could be the creation of a zone of separation with an agreement to withdraw opposing armies from the ceasefire line followed by the establishment of a demilitarised zone under the authority of an international peacekeeping force. This zone could then become the first location where the return of refugees and displaced persons could take place. The applicant asserted that the Government had not even claimed that they sought to take any such steps.
209. The Government ’ s main argument prior to the decision on admissibility had been that they did not have effective control over Gulistan and were thus not in a position to grant the applicant access to his possessions and, consequently, could not be held responsible for the alleged continuing violation (see Sargsyan (dec.), cited above, § 155).
210. In the subsequent proceedings, the Government – in line with their position that they had only limited responsibility under the Convention in respect of Gulistan as they did not have sufficient control of the area – submitted in the first place that they had fulfilled their remaining positive obligations under Article 1 of the Convention, both in terms of general measures and in terms of individual measures. The Government pointed out that they consistently opposed the unlawful occupation of Nagorno ‑ Karabakh and the surrounding provinces by Armenian forces. In parallel, they had sought to re-establish control over the territory by all available diplomatic means, in particular by participating in the peace talks in the framework of the Minsk Group. Regular meetings were held by the Co- Chairs of the Group with the Foreign Ministers and Presidents of Armenia and Azerbaijan. In so far as individual measures were required to address the situation of refugees and IDPs, the Government referred to the 1991 Order (see paragraph 83 above) which legalised private property swaps between Azeris fleeing Armenia, Nagorno-Karabakh and the surrounding provinces and Armenians fleeing Azerbaijan. This was a step taken in order to address the wholly exceptional emergency situation created by massive flows of refugees and IDPs. However, to the Government ’ s knowledge, the applicant had not been engaged in such an exchange.
211. In the alternative, should the Court hold that the Government had full responsibility under the Convention, they accepted that refusing the applicant access to Gulistan could be seen as an interference with his rights under Article 1 of Protocol No. 1.
212. They asserted that the refusal to grant any civilian of whatever nationality access to Gulistan was justified by the security situation in the area. Any interference with the applicant ’ s rights was lawful and served the general interest. In that connection, the Government noted that the Azerbaijani armed forces, whose status was regulated by the 1993 Law on armed forces of the Republic of Azerbaijan, were responsible for defending the borders of Azerbaijan and for securing the safety of its inhabitants. Access to Gulistan, which was situated within an area of military operations, was prohibited by an Order of the Minister of Defence, which they could not disclose as it was strictly confidential. The legal basis for the Minister of Defence to issue such orders was to be found in Article 7 § 2 (11) of the Law on defence of the Republic of Azerbaijan. In fulfilling their mission outlined above, the Azerbaijani armed forces had to comply with the Convention and with international humanitarian law. They were thus responsible for minimising possible harm to civilians by preventing them from entering areas of danger. In fact, allowing civilians to enter the village might be regarded as a violation of Azerbaijan ’ s obligation to protect their right to life under Article 2 of the Convention. It was obvious that Gulistan was a dangerous area, given the presence of landmines and the risk of hostile action.
213. Furthermore, the Government referred to Doğan and Others (cited above) noting that, in cases of this type, the Court had concentrated on issues of the proportionality of the interference. They argued that the present case differed from Doğan and Others, in which the Court had found violations of Article 1 of Protocol No. 1 and Article 8 of the Convention. They pointed out in essence that the applicant in the present case was not an IDP. He was living in Armenia and thus came within its jurisdiction. The Government had made considerable efforts to cater for the needs of hundreds of thousands of IDPs providing them in particular with housing and a range of social services. However, given that the applicant lived in Armenia, they were not in a position to provide him with any practical help.
( c) The Armenian Government, third-party intervener
214. The Armenian Government agreed with the arguments submitted by the applicant.
215. The Court considers it useful to make a number of introductory remarks. As set out in the admissibility decision in the present case ( see Sargsyan (dec.), cited above, §§ 89-91) and in the considerations above, the acceptance of the Court ’ s competence ratione temporis is based on the finding that the applicant still holds valid property rights in respect of the house and land in Gulistan (see paragraph 205 above). In contrast, the applicant ’ s displacement from Gulistan in June 1992 falls outside the Court ’ s competence ratione temporis ( ibid., § 91). Consequently, what has to be examined in the present case is whether the Government have violated the applicant ’ s rights in the ensuing situation, which is a direct result of the unresolved conflict over Nagorno ‑ Karabakh between Armenia and Azerbaijan.
216. In that connection, the Court observes that the applicant is one of hundreds of thousands of Armenians who fled Azerbaijan during the conflict leaving property and home behind. Currently, more than a thousand individual applications lodged by persons who were displaced during the conflict are pending before the Court, slightly more than half of them being directed against Armenia and the remainder against Azerbaijan. While the issues raised fall within the Court ’ s jurisdiction as defined in Article 32 of the Convention, it is the responsibility of the two States involved in the conflict to find a political settlement to the conflict (see, mutatis mutandis, Kovačić and Others v. Slovenia [ GC], nos. 44574/98 and 2 others, §§ 255 ‑ 56, 3 October 2008, and Demopoulos and Others, cited above, § 85 ). Comprehensive solutions to such questions as the return of refugees to their former places of residence, repossession of their property and/or payment of compensation can only be achieved through a peace agreement. Indeed, prior to their accession to the Council of Europe, Armenia and Azerbaijan gave undertakings to the Committee of Ministers and the Parliamentary Assembly to resolve the Nagorno ‑ Karabakh conflict through peaceful means (see paragraph 76 above). Although negotiations have been conducted in the framework of the Minsk Group, more than twenty years have gone by since the Ceasefire Agreement and more than twelve years since the accession of Azerbaijan and Armenia to the Convention, on 15 and 26 April 2002 respectively, with no political solution yet in sight. As recently as June 2013, the Presidents of the Co-Chair countries of the Minsk Group – France, Russia and the United States of America – have expressed their “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” (see paragraph 28 above). The Court cannot but note that compliance with the above accession commitment is still outstanding.
(a) Applicable rule of Article 1 of Protocol No. 1
217. The Court reiterates that Article 1 of Protocol No. 1 comprises three distinct rules. The first rule, which is set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property. The second rule, contained in the second sentence of the first paragraph, covers the deprivation of possessions and subjects it to certain conditions. The third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose. However, the rules are not “distinct” in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see among many other authorities, Broniowski v. Poland [GC], no. 31443/96, § 134, ECHR 2004 ‑ V ).
218. The Court notes that the parties did not comment on the rule applicable to the case. It reiterates its finding that the applicant was not deprived of his rights in respect of the house and land in Gulistan. It follows that the case does not involve a deprivation of property within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1. Nor has it been claimed that the situation complained of was the result of any measures aimed at controlling the use of property. The Court therefore considers that the situation of which the applicant complains falls to be examined under the first sentence of the first paragraph, as it concerns a restriction of the applicant ’ s right to the peaceful enjoyment of his possessions (see Loizidou (merits), cited above, § 63; Cyprus v. Turkey [GC], no. 25781/94, § 187, ECHR 2001 ‑ IV; and Doğan and Others, cited above, § 146).
(b) Nature of the alleged violation
219. The essential object of Article 1 of Protocol No. 1 is to protect a person against unjustified interference by the State with the peaceful enjoyment of his or her possessions. However, by virtue of Article 1 of the Convention, each Contracting Party “shall secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”. The discharge of this general duty may entail positive obligations inherent in ensuring the effective exercise of the rights guaranteed by the Convention. In the context of Article 1 of Protocol No. 1, those positive obligations may require the State to take the measures necessary to protect the right of property (see Broniowski, cited above, § 143, and Sovtransavto Holding v. Ukraine, no. 48553/99, § 96, ECHR 2002 ‑ VII ).
220. However, the boundaries of the State ’ s positive and negative obligations under Article 1 of Protocol No. 1 do not lend themselves to precise definition. The applicable principles are nonetheless similar. Whether a case is analysed in terms of a positive duty of the State or in terms of interference by a public authority which needs to be justified, the criteria to be applied do not differ in substance. In both contexts regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole. It also holds true that the aims mentioned in that provision may be of some relevance in assessing whether a balance between the demands of the public interest involved and the applicant ’ s fundamental right of property has been struck. In both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention ( see Broniowski, cited above, § 144).
221. The Court notes that the applicant complains that he is prevented from having access to his possessions in Gulistan and that the Government have failed to provide him with any compensation for the interference with his rights. The applicant has thus formulated his complaint in terms of interference. Likewise, the Government, in case the Court should dismiss their argument that they have only limited responsibility under Article 1 of the Convention, addressed the applicant ’ s complaints as being directed against an interference with his property rights.
222. In a number of comparable cases the Court has examined complaints of refugees or displaced persons about the lack of access to and enjoyment of possessions as an interference with their rights under Article 1 of Protocol No. 1 ( see, for instance, Loizidou (merits), cited above, § 63; Cyprus v. Turkey, cited above, § 187; and Doğan and Others, cited above, § 143). In the present case, the Court does not consider it appropriate to follow this approach for the following reasons.
223. The present case differs from the cases concerning northern Cyprus in which the Turkish Government were held responsible for refusing Greek ‑ Cypriot owners access to their properties situated in the “TRNC” which were under the Turkish Government ’ s effective control as a result of occupation and the establishment of a subordinate local administration. In those cases the interference with the Greek-Cypriot owners ’ property rights was closely linked with the fact of occupation and establishment of the “TRNC” ( see Loizidou (merits), cited above, §§ 52-56 and 63, and Cyprus v. Turkey, cited above, §§ 75-80 and 187). In contrast, what is at stake in the present case are acts or omissions by the Government within their own internationally recognised territory.
224. The present case is the first case in which the Court has to rule on the merits of a complaint against a State which has lost control over part of its territory as a result of war and occupation, but is claimed to be responsible for refusing a displaced person access to property in respect of the area remaining under its control. The only cases which would be comparable to the present case are a number of applications against Cyprus lodged by Turkish Cypriots also raising complaints about the lack of access to their property and homes situated in the areas remaining under the Cypriot Government ’ s control. However, these have not reached the stage of examination of the merits as they were either settled ( see Sofi v. Cyprus (dec.), no. 18163/04, 14 January 2010) or dismissed for failure to exhaust remedies provided by Cyprus in respect of abandoned properties ( see, in particular, Kazali and Others, cited above, §§ 152-53 ).
225. In Doğan and Others (cited above), villagers who had been evicted from their village in the state-of-emergency region of south ‑ east Turkey in the context of violent confrontations between the security forces and members of the PKK (Workers ’ Party of Kurdistan) were prevented by the authorities from returning for about nine years on the ground of terrorist incidents in and around the village (§§ 142-43). It is worth noting that, while it did analyse the villagers ’ complaint regarding the refusal of access to their property in the village in terms of interference, the Court eventually left open the questions whether the interference with their right to peaceful enjoyment of possessions was lawful and pursued a legitimate aim, and concentrated its examination on the issue of proportionality (§§ 147 ‑ 49).
226. Having regard to the circumstances of the present case, the Court considers it appropriate to examine the applicant ’ s complaint with a view to establishing whether the Government have complied with their positive obligations under Article 1 of Protocol No. 1. It will therefore concentrate its examination on the question whether a fair balance between the demands of the public interest and the applicant ’ s fundamental right of property has been struck.
( c) Whether a fair balance has been struck between the demands of the public interest and the applicant ’ s right to the peaceful enjoyment of his possessions
227. Transposing the principles developed in its case-law to the specific circumstances of the present case, the Court considers that both an interference with the peaceful enjoyment of the applicant ’ s possessions and abstention from action must strike a fair balance between the safety considerations relied on by the Government and the requirements of the protection of the applicant ’ s fundamental rights. The Court reiterates that the concern to achieve this balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measures applied by the State, including measures depriving a person of his or her possessions. In each case involving the alleged violation of that Article, the Court must, therefore, ascertain whether by reason of the State ’ s action or inaction the person concerned had to bear a disproportionate and excessive burden ( see Broniowski, cited above, § 150, with further references ). In assessing compliance with Article 1 of Protocol No. 1 the Court must make an overall examination of the various interests in issue, bearing in mind that the Convention is intended to safeguard rights that are “practical and effective”. It must look behind appearances and investigate the realities of the situation complained of ( ibid., § 151).
228. The Court considers that the applicant ’ s complaint raises two issues, firstly, whether the Government are under an obligation to grant him access to his house and land in Gulistan and, secondly, whether they are under a duty to take any other measures to protect the applicant ’ s property right and/or to compensate him for the loss of the use of the property.
229. Regarding the question of access to the applicant ’ s property in Gulistan, the Court observes that the general situation of unresolved conflict between Armenia and Azerbaijan may make travel to Azerbaijan let alone access to their property very difficult, if not impossible, for persons in the applicant ’ s situation. However, the parties ’ argument concentrated on the specific situation in Gulistan. The Court will also concentrate its examination on this point.
230. The Government argued in particular that the refusal to grant any civilian access to Gulistan was justified by the security situation pertaining in and around the village. While referring briefly to their obligations under international humanitarian law, the Government relied mainly on interests of defence and national security and on their obligation under Article 2 of the Convention to protect life against dangers emanating from landmines or military activity.
231. The Government have not submitted any detailed argument in respect of their claim that their refusal to grant civilians access to Gulistan was grounded in international humanitarian law. The Court observes that international humanitarian law contains rules on forced displacement in occupied territory but does not explicitly address the question of displaced persons ’ access to their home or other property. Article 49 of the Fourth Geneva Convention (see paragraph 95 above) prohibits individual or mass forcible transfers or deportations in or from occupied territory, allowing for the evacuation of a given area only if the security of the population or imperative military reasons so require; in that case, displaced persons have a right to return as soon as hostilities in the area have ceased. However, these rules are not applicable in the present context as they only apply in occupied territory, and Gulistan is situated on the Government ’ s own internationally recognised territory.
232. What is rather of relevance in the present case is the right of displaced persons to return voluntarily and in safety to their homes or places of habitual residence as soon as the reasons for their displacement cease to exist, which is regarded as a rule of customary international humanitarian law applying to all territory whether “occupied” or “own” ( see Rule 132 in Customary International Humanitarian Law by the ICRC – paragraph 95 above). However, it may be open to debate whether the reasons for the applicant ’ s displacement have ceased to exist. In sum, the Court observes that international humanitarian law does not appear to provide a conclusive answer to the question whether the Government are justified in refusing the applicant access to Gulistan.
233. On the basis of the evidence before it the Court has established that Gulistan is situated in an area of military activity. The area around it, at least, is mined and ceasefire violations occur frequently. It has not been claimed and there is no indication that this situation has changed in any significant way in the period from the entry into force of the Convention until the present day. In any case, there are no signs that the situation has improved. The evidence before the Court rather points to an increase in military activity and ceasefire violations in the area. The Court accepts that refusing civilians, including the applicant, access to Gulistan is justified by safety considerations, in particular restricting access to a mined area and protecting civilians against the dangers existing in such an area (see, mutatis mutandis, Oruk v. Turkey, no. 33647/04, § § 58- 67, 4 February 2014, relating to the State ’ s obligation under Article 2 of the Convention to take appropriate measures to protect civilians living near a military firing zone against dangers emanating from unexploded ammunition ). It would be unrealistic at present to expect the Azerbaijani Government to ensure the applicant access to or repossession of his property in Gulistan irrespective of the fact that it is in a militarily sensitive zone (see, mutatis mutandis, Demopoulos and Others, cited above, § 112 ).
234. However, the Court considers that, as long as access to the property is not possible, the State has a duty to take alternative measures in order to secure property rights. The Court refers in that respect to the case of Doğan and Others, concerning the internal displacement of villagers, in which it examined in detail the measures taken by the Turkish Government with a view to either facilitating their return to villages or providing IDPs with alternative housing or other forms of assistance (cited above, §§ 153-56). The Court would point out that the obligation to take alternative measures does not depend on whether or not the State can be held responsible for the displacement itself. In Doğan and Others the Court noted that it was unable to determine the exact cause of the displacement of the applicants and therefore had to confine its consideration to the examination of their complaints concerning the denial of access to their possessions ( cited above, § 143 ). Which measures need to be taken depends on the circumstances of the case.
235. The Court will examine whether the Government have taken measures for the protection of the applicant ’ s property rights. The Government asserted in particular that they have been participating in peace talks. Moreover, they pointed out that they had to cater for the needs of a huge number of IDPs. As the applicant was no longer present in Azerbaijan they could not provide any assistance to him. For his part, the applicant alleged that the Government had not taken any steps which they should have taken to protect or restore his property rights, had they acted in conformity with international standards regarding the restitution of housing and property to IDPs and refugees.
236. In so far as the Government asserted that they are participating in peace talks, the Court observes that the right of all IDPs and refugees to return to their former places of residence is one of the elements contained in the 2007 Madrid Basic Principles which have been drafted in the framework of the Minsk Group (see paragraph 26 above) and form the basis of the peace negotiations. The question therefore arises whether it is sufficient for the Government to participate in these negotiations in order to fulfil their duty to strike a fair balance between the competing public and individual interests. While the Court can only emphasise the importance of these negotiations, it has already observed that they have been ongoing for over twenty years since the ceasefire in May 1994 and for more than twelve years since the entry into force of the Convention in respect of Azerbaijan and have not yet yielded any tangible results.
237. The Court considers that the mere fact that peace negotiations are ongoing does not absolve the Government from taking other measures, especially when negotiations have been pending for such a long time (see, mutatis mutandis, Loizidou (merits), cited above, § 64, and Cyprus v. Turkey, cited above, § 188). In that connection, the Court refers to PACE Resolution 1708 (2010) on Solving property issues of refugees and internally displaced persons, which, relying on relevant international standards, calls on member States to “ guarantee timely and effective redress for the loss of access and rights 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 ” (see paragraph 98 above).
238. Guidance as to which measures the Government could and should take in order to protect the applicant ’ s property rights can be derived from relevant international standards, in particular from the Pinheiro Principles (see paragraph 96 above) and the above - mentioned PACE Resolution. At the present stage, and pending a comprehensive peace agreement, it would appear particularly important to establish a property - claims mechanism, which should be easily accessible and provide procedures operating with flexible evidentiary standards, allowing the applicant and others in his situation to have their property rights restored and to obtain compensation for the loss of their enjoyment.
239. The Court is fully aware that the Government has had to provide assistance to hundreds of thousands of IDPs, namely those Azeris who had to flee Armenia, Nagorno ‑ Karabakh and the seven occupied surrounding districts. In fact, the Government have pointed out that they have made considerable efforts to provide IDPs with housing and other means of support. The only measure indicated by the Government from which Armenian refugees could potentially benefit is the 1991 Order legalising property swaps between individuals. Even assuming that such property swaps would be acceptable under the Convention, the Court notes that the applicant has not been involved in such an exchange.
240. The Court considers that, while the need to provide for a large community of IDPs is an important factor to be taken into account, the protection of this group does not exempt the Government entirely from its obligations towards another group, namely Armenians, like the applicant who had to flee during the conflict. In this connection, the Court refers to the principle of non-discrimination laid down in Article 3 of the above-mentioned Pinheiro Principles. Finally, the Court observes that the situation has continued to exist over a very lengthy period.
241. In conclusion, the Court considers that the impossibility for the applicant to have access to his property in Gulistan and the Government not taking any alternative measures to restore his property rights or to provide him with compensation for his loss of their enjoyment placed and continues to place an excessive burden on him.
242. Consequently, there has been a continuing breach of the applicant ’ s rights under Article 1 of Protocol No. 1.
V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
243. The applicant complained that the denial of his right to return to the village of Gulistan and to have access to his home and to the graves of his relatives constitutes a continuing violation of Article 8 of the Convention, which reads as follows :
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
244. The applicant maintained that he was born and grew up in Gulistan and lived there in his house with his family from the early 1960s until June 1992. He referred to the evidence submitted in support of his complaint under Article 1 of Protocol No. 1. In addition, he referred to the copy of his former Soviet passport, which confirmed that he was born in Gulistan in 1929, and to his marriage certificate which showed that he had got married in Gulistan in 1955, pointing out that he had submitted both documents with his application. Furthermore, he stated that he was no longer able to submit a complete copy of his former Soviet passport (including the page with the registration stamp showing that he had lived in Gulistan) as that passport had been destroyed in 2002 when he had obtained an Armenian passport.
245. The applicant argued that the applicability of Article 8 depended on the existence of “sufficient and continuous links with a specific place” or “concrete and persisting links with the property concerned”, criteria which he fulfilled in respect of his home in Gulistan. As followed from the Court ’ s case-law relating to northern Cyprus, these links were not broken by his prolonged involuntary absence. He added that this assessment and thus the applicability of Article 8 were independent from the question of ownership of the “home” in issue. In respect of his relatives ’ graves, he argued that the denial of access to them violated his right to respect for “private and family life” as guaranteed by Article 8. He asserted that apart from the fact that he was unable to visit the graves of his relatives, he suffered in particular from not knowing their fate.
246. In sum, the applicant argued that the refusal of access to his home, or to award him compensation, and the denial of access to the graves of his relatives and the ensuing uncertainty about their fate constituted continuing violations of Article 8 of the Convention.
247. The Government asserted that the applicant had not submitted sufficient evidence to show that he had actually lived in Gulistan or had a home there. They explained that under the Soviet residence registration system ( propiska ), which required everyone to be registered at his or her place of residence, registration was recorded in the citizen ’ s internal passport by a registration stamp and in the archives of the local authorities. In the present case, the relevant archives had been destroyed during the hostilities and the copy of those pages of the applicant ’ s former Soviet passport which he had submitted did not bear a registration stamp.
248. Regarding the applicability of Article 8, the Government accepted that access to a home or to the graves of relatives fell within the notions of “home” and “private life” and thus within the scope of Article 8. However, referring to Demopoulos and Others ( cited above, § 136), they asserted that Article 8 did not apply where there was no longer a “persisting link” with the property concerned. The Government maintained the view that, even assuming that the applicant had lived in Gulistan and had had a house there, that house had been destroyed during the hostilities in 1992. Consequently, the applicant could no longer claim to have such a persisting link with a “home” in Gulistan.
249. In so far as the applicant ’ s complaint related to the graves of his relatives, the Government observed, firstly, that he had complained of the alleged destruction of Armenian graves in Azerbaijan but had not submitted sufficient evidence to show that there were graves of his relatives in Gulistan and that these graves had been destroyed. Consequently, he could not claim to be a victim of the alleged violation of Article 8 of the Convention. If such graves had actually existed, they had most likely been destroyed during the hostilities, namely before the entry into force of the Convention, and this part of the complaint was therefore incompatible ratione temporis.
250. Should the Court nonetheless come to the conclusion that Article 8 applied, as the applicant had a home and graves of his relatives in Gulistan, the Government argued that they could not be held responsible for any alleged interference with his rights. Given the security situation in the area, they were simply not in a position to grant the applicant, or any civilian, access to Gulistan.
3. The Armenian Government, third-party intervener
251. The Armenian Government agreed with the arguments submitted by the applicant. They noted that it was undisputed that the applicant had no access to his home in Gulistan and to the graves of his relatives. Seen against the background of massive destruction of Armenian graveyards (for instance, the destruction of the ancient Armenian graveyard of Jugha in the Nakhichevan region of Azerbaijan), which had been condemned by the international community, the applicant lived in a state of insecurity and anxiety as regards his relatives ’ graves.
1. Whether Article 8 of the Convention applies
252. The Court notes that the applicant ’ s complaint encompasses two aspects: lack of access to his home in Gulistan and lack of access to the graves of his relatives. The Government contested the applicant ’ s victim status in so far as his complaint concerned the graves of his relatives. In its admissibility decision, the Court had joined the Government ’ s objection concerning the applicant ’ s victim status to the merits ( see Sargsyan (dec.), cited above, § 99).
253. The Court reiterates its established case-law, according to which “home” is an autonomous concept which does not depend on the classification under domestic law. Whether or not a particular habitation constitutes a “home” which attracts the protection of Article 8 § 1 will depend on the factual circumstances, namely the existence of sufficient and continuous links with a specific place ( see, for instance, Prokopovich, cited above, § 36, and Gillow v. the United Kingdom, 24 November 1986, § 46, Series A no. 109 ).
254. In comparable cases the Court has considered that lengthy involuntary absence was not capable of breaking the link with a displaced person ’ s home (see Cyprus v. Turkey, cited above, §§ 173-75, and Doğan and Others, cited above, §§ 159-60). However, the Court ’ s case-law requires that a sufficiently strong link existed in the first place: for instance, in Loizidou ( (merits), cited above, § 66) the Court did not accept that a property on which the applicant had planned to build a house for residential purposes constituted a “home” within the meaning of Article 8 of the Convention. In Demopoulos and Others (cited above, §§ 136-37) the Court did not accept that the then family home of a Greek-Cypriot family could also be regarded as a “home” in respect of one of the applicants, the daughter, who was still very young when the family had to leave.
255. Furthermore, the Court reiterates that the concept of “private life” is a broad term not susceptible to exhaustive definition. Among other things, it includes the right to establish and develop relationships with other human beings and the outside world (see, for instance, Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III ). While it has been said that the exercise of Article 8 rights, including private and family life, pertains predominantly to relationships between living human beings, it is not excluded that these notions may extend to certain situations after death ( see, in particular, Jones v. the United Kindgom (dec.), no. 42639/04, 1 3 September 2005, relating to the authorities ’ refusal to allow the applicant to place a memorial stone with a photograph on his daughter ’ s grave; Elli Poluhas Dödsbo v. Sweden, no. 61564/00, § 24, ECHR 2006 ‑ I, relating to the authorities ’ refusal to allow the applicant to transfer the urn containing her late husband ’ s ashes from one cemetery to another; and Hadri ‑ Vionnet v. Switzerland, no. 55525/00, § 52, 14 February 2008, relating to the burial of the applicant ’ s stillborn child by the authorities without giving her an opportunity to be present ). In a recent case, the Court has found that the authorities ’ refusal to return the bodies of the applicant ’ s relatives and the order of their burial in an unknown location, thus depriving the applicants of the opportunity to know the location of the gravesite and to visit it subsequently, constituted an interference with their private and family life (see Sabanchiyeva and Others v. Russia, no. 38450/05, § § 122 ‑ 23, ECHR 2013 ).
256. In the present case the applicant has submitted evidence, namely a copy of his former Soviet passport and of his marriage certificate, which show that he was born in Gulistan in 1929 and got married there in 195 5. Moreover, the Court has found it established that the applicant owned a house in Gulistan which, though badly damaged, still exists to date (see paragraph 197 above). His claim that, having built his house in the early 1960s, he lived there with his family until his flight in June 1992 is supported by a number of witness statements. Finally, the maps of Gulistan, submitted by the parties and the Armenian Government, show that there was a cemetery in the village. As the applicant was from Gulistan and many of his relatives were living there, it is also credible that there were graves of his late relatives in the village cemetery.
257. The Court therefore accepts that the applicant had a “home” in Gulistan, which he left involuntarily in June 1992. The gist of his complaint is precisely that he has been unable to return there ever since. In these circumstances his prolonged absence cannot be considered to break the continuous link with his home. Furthermore, the Court finds it established that the applicant had lived in Gulistan for most of his life and must therefore have developed most of his social ties there. Consequently, his inability to return to the village also affects his “private life”. Finally, the Court considers that, in the circumstances of the case, the applicant ’ s cultural and religious attachment to his late relatives ’ graves in Gulistan may also fall within the notion of “private and family life”. In sum, the inability of the applicant to return to his former place of residence affects his rights to his “private and family life” and “home”.
258. In conclusion, the Court dismisses the Government ’ s objection as regards the applicant ’ s victim status in respect of his relatives ’ graves and considers that the facts of the case fall within the notions of “private and family life” and “home”. Article 8 therefore applies.
2. Whether there has been a continuing violation of Article 8 of the Convention
259. The Court refers to the considerations set out above which led to the finding of a continuing violation of Article 1 of Protocol No. 1. It has found that due to the situation pertaining in Gulistan refusing the applicant, or any civilian, access to the village served the interest of protecting civilians against the dangers existing in the area. However, the impossibility for the applicant to have access to his property in Gulistan and the Government not taking any alternative measures to restore his property rights or to provide him with compensation for his loss of their enjoyment, had placed and continued to place an excessive burden on him.
260. The same considerations apply in respect of the applicant ’ s complaint under Article 8 of the Convention. The impossibility for the applicant to have access to his home and to his relatives ’ graves in Gulistan and the Government not taking any measures to address his rights or to provide him at least with compensation for the loss of their enjoyment, placed and continues to place a disproportionate burden on him.
261. Accordingly, the Court concludes that there has been a continuing breach of the applicant ’ s rights under Article 8 of the Convention.
VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
262. The applicant complained that no effective remedy was available to him in respect of all of his above complaints. He relied on Article 13 which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
263. The applicant referred, firstly, to the arguments submitted in respect of the exhaustion of domestic remedies. Secondly, he argued in more detail that useful conclusions as to the requirements for effective remedies in a comparable context could be drawn from the Court ’ s case-law relating to Greek- Cypriot property in northern Cyprus.
264. In the case of Xenides-Arestis v. Turkey ( (dec.), no. 46347/99, 14 March 2005 ), the Court had found that remedies available in the “TRNC” in respect of the loss of access to and enjoyment of property and home were ineffective on a number of grounds. In the subsequent case of Demopoulos and Others (cited above, §§ 104-29 ), the Court examined the effectiveness of remedies which had been amended in the meantime. Having carried out a detailed examination, the Court was satisfied that the proceedings before the Immovable Property Commission provided an effective remedy. It noted in particular that : the Commission, which included two independent international members, had been functioning for four years; the Commission had concluded eighty-five applications and some 300 other claims were pending before it; there was no evidence establishing that the proceedings would take an unreasonable length of time; the Commission had paid out significant sums of money by way of compensation; claims could also be made in respect of non-pecuniary damage, including aspects of any loss of enjoyment of home; exchange of property had been effected in several cases; and there was a right to appeal to a court. The Demopoulos and Others decision showed that the Court required substantial evidence of the effectiveness in practice of a purported remedy.
265. Other examples of remedies which the Court had found effective in somewhat comparable situations related to the eviction of villagers in south-east Turkey (see Içyer v. Turkey (dec.), no. 18888/02, ECHR 2006 -I ).
266. In contrast, in the present case the remedies which the Government claimed to be effective fulfilled none of these requirements.
267. The Government referred in essence to their submissions concerning the exhaustion of domestic remedies. They maintained in particular that Azerbaijani law protected both ownership and possession of property and provided adequate procedures which were accessible to citizens and foreigners allowing them to take action before the courts in respect of any loss or damage suffered on the territory of Azerbaijan.
3. The Armenian Government, third- party intervener
268. The Armenian Government supported the arguments submitted by the applicant. They maintained their position that there existed an administrative practice in Azerbaijan to prevent forcibly expelled Armenians, and generally any person of Armenian origin, from returning to or even visiting Azerbaijan.
269. The Court has already found continuing violations of Article 1 of Protocol No. 1 and Article 8 of the Convention. The applicant ’ s complaints are therefore “ arguable ” for the purposes of Article 13 (see, for instance, Doğan and Others, cited above, § 163).
270. The applicant ’ s complaint under this head reflects to a large extent the same or similar elements as those already dealt with in the context of the objection concerning the exhaustion of domestic remedies. In addition, the applicant argued that the Court ’ s case-law contained indications as to the specific requirements which remedies designed to address violations of refugees ’ or displaced persons ’ rights to property and home should fulfil in order to be effective.
271. The Court reiterates its above finding that the Government have failed to discharge the burden of proving the availability of a remedy capable of providing redress to the applicant in respect of his Convention complaints and offering reasonable prospects of success (see paragraph 119 above).
272. Furthermore, the Court observes that its findings above under Article 1 of Protocol No. 1 and Article 8 of the Convention relate to the respondent State ’ s failure to create a mechanism which would allow the applicant, and others in a comparable situation, to have his rights in respect of property and home restored and to obtain compensation for the losses suffered. The Court therefore perceives a close link in the present case between the violations found under Article 1 of Protocol No. 1 and Article 8 of the Convention on the one hand and the requirements of Article 13 on the other.
273. In conclusion, the Court finds that there has been and continues to be no available effective remedy in respect of the violation of the applicant ’ s rights under Article 1 of Protocol No. 1 and under Article 8 of the Convention.
274. Accordingly, there has been a continuing breach of Article 13 of the Convention.
VII. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
275. Finally, the applicant complained with a view to his complaints set out above that he had been subjected to discrimination on the basis of his ethnic origin and religious affiliation. He relied on Article 14 of the Convention, which provides as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
276. In the applicant ’ s view, the discriminatory treatment of Armenians was a fundamental aspect of the case. He maintained that only ethnic Armenians had been forced by the Azerbaijani military to flee their property and homes in the context of the Nagorno-Karabakh conflict. They were still unable to return or make use of any effective remedies. While internally displaced Azerbaijanis benefitted from government assistance, nothing whatsoever had been done for Armenians in the applicant ’ s position.
277. The Government rejected the applicant ’ s allegation that he had been subjected to discriminatory measures on account of his ethnic origin or religious affiliation. As regards his return to Gulistan, they asserted that the security situation did not allow the presence of any civilian in the area. Finally, the Government claimed that they had sufficiently shown their political will to settle the conflict in a manner which would allow all refugees and IDPs to return to their former places of residence.
3. The Armenian Government, third-party intervener
278. The Armenian Government agreed with the applicant, underlining that his complaint had to be seen against the background of the Nagorno ‑ Karabakh conflict at large: only ethnic Armenians were subjected to forced displacement from Azerbaijan and the denial of the applicant ’ s right to return was also related to his ethnic origin.
279. The Court considers that the applicant ’ s complaints under Article 14 of the Convention amount essentially to the same complaints which the Court has already examined under Article 1 of Protocol No. 1 and under Articles 8 and 13 of the Convention. Having regard to its findings of violations in respect of these Articles, the Court considers that no separate issue arises under Article 14 (see, for instance, Cyprus v. Turkey, cited above, § 199; Xenides-Arestis v. Turkey, no. 46347/99, § 36, 22 December 2005; and Catan and Others, cited above, § 160).
VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
280. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
281. The applicant requested first and foremost restitution of his property, including the right to return to his property and home in Gulistan. Furthermore, he suggested that it might be appropriate for the Court to indicate general measures under Article 46 of the Convention to the Government. The applicant claimed compensation for pecuniary damage in a total amount of 374,814 euros (EUR). Furthermore, he claimed non ‑ pecuniary damage in a total amount of EUR 190,000. Finally, he claimed reimbursement of the costs and expenses incurred in the proceedings before the Court.
282. The Government contested these claims.
283. The Court, having regard to the exceptional nature of the case, considers that the question of the application of Article 41 is not ready for decision. That question must accordingly be reserved and the subsequent procedure fixed, having due regard to any agreement which might be reached between the Government and the applicant.
1. Dismisses, by fifteen votes to two, the Government ’ s preliminary objection of non-exhaustion of domestic remedies;