Strasbourg Court opens door to complaints by refugees displaced during conflict – Aarif Abraham
22 June 2015
Chiragov and Others v. Armenia (App No 13216/05) – read judgment
In two important decisions, the Grand Chamber of the Strasbourg Court has held that the forced displacement of peoples from the disputed region of Nagorno-Karabakh during the armed conflict between Azerbaijan and Armenia constituted a violation of Article 1 of Protocol 1 (right to the peaceful enjoyment of property) and Article 8 (right to a private and family life) of the European Convention on Human Rights.
The case of Chiragov which concerned the forced displacement of Azerbaijani nationals was decided in parallel with the Grand Chamber judgment in Sargsyan v Azerbaijan (found here). Sargsyan was delivered on the same day and reached the same conclusions in respect of Armenian nationals forced to flee from Azerbaijani territory.
The case is particularly important in respect of the Court’s stance on the extra-temporal and extra-territorial application of the Convention. Whilst the judgment concerns the frozen Armenian-Azerbaijani conflict, it will have a far broader impact for hundreds of thousands of internally displaced people (IDPs) and refugees in Council of Europe member countries, particularly in the context of state-orchestrated military campaigns. It will be immediately relevant, however, to the estimated 30,000 IDPs from Lachin district, in Nagrono Karabakh, and 450,000-500,000 people forced out of neighbouring areas during the wider Armenian-Azerbaijani conflict.
The following summary of the facts and judgment is based on the Grand Chamber’s decisions in Chiragov and the Court’s press release.
The case related to five Azerbaijani individuals, Azerbaijani Kurds, who were forced to flee their homes in Lachin province in the disputed Nagorno-Karabakh region during the 27 year-long Armenian-Azerbaijani conflict. They have since been unable to return to their properties despite the end of immediate hostilities due to a cease-fire agreement.
At the time of the dissolution of the Soviet Union in December 1991, the Nagorno-Karabakh Autonomous Oblast (“the NKAO”) was an autonomous province landlocked within the Azerbaijan Soviet Socialist Republic. There was no common border between the NKAO and the Armenian Soviet Socialist Republic and they were separated at the shortest distance by the district of Lachin. In 1989, the NKAO had a population of approximately 77% ethnic Armenians and 22% ethnic Azeris whereas in Lachin, the majority of the population were Kurds and Azeris; only 5-6% were Armenians.
Armed hostilities in the Nagorno-Karabakh region started in 1988. In September 1991 – shortly after Azerbaijan had declared its independence from the Soviet Union – the Regional Council of the NKAO announced the establishment of the “Nagorno-Karabakh Republic” (“NKR”), consisting of the territory of the NKAO and the Shahumyan district of Azerbaijan. Following a referendum in December 1991 – boycotted by the Azeri population – the “NKR” reaffirmed its independence from Azerbaijan in January 1992. After that, the conflict gradually escalated into 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. The conflict resulted in hundreds of thousands of internally-displaced people and refugees on both sides.
In May 1994, the parties to the conflict signed a cease-fire agreement, which holds to this day. The self-proclaimed independence of the “NKR” has not been recognised by any state or international organisation.
The Applicants’ Complaints
The Applicants complained that the loss of all control over their properties in Lachin, as well as of all potential to use, sell, bequeath, mortgage, develop and/or enjoy those homes, amounted to a continuing violation of Article 1 of Protocol No. 1 to the ECHR. They also complained that their inability to return to the district of Lachin constitutes a continuing violation of Article 8 of the Convention. Furthermore, they complained that no effective remedies were available to them in respect of their complaints, in breach of Article 13 (right to an effective remedy). Finally, they submitted that, in relation to the other complaints, they were discriminated against on the basis of their ethnic origin and religious affiliation, in violation of Article 14 (prohibition of discrimination).
The Decision of the Grand Chamber
At the final hearing, the Court ruled in favour of the Applicants on the basis that the Armenian Government had no justification for denying them access to their property without providing them with compensation. The fact that peace negotiations were ongoing did not free the Armenian Government from their duty to take other measures. An easily accessible property claims mechanism was called for (under Article 13) to allow the Applicants and others in their situation to have their property rights restored and to obtain compensation.
The Court dismissed the Armenian Government’s objection that the Applicants had failed to exhaust the legal remedies at national level. It found that the Government had not shown that there was any legal remedy – whether in Armenia or in the Nagorno-Karabakh region – capable of providing redress in respect of the Applicants’ complaints. The Applicants’ lack of control over their properties amounted to a violation of Article 1 of Protocol No. 1 (protection of property) and a continuing violation of Article 8 (right to respect for home and private and family life).
The case is particularly important in relation to testing the boundaries of the Convention as regards accountability for violations that occurred prior to the coming into force of the Convention in Armenia. The case, together with the decision in Sargsyan vs. Azerbaijan (App No 40167/06), decided in parallel with Chiragov, could potentially aid the extra-territorial and extra-temporal application of the Convention.
The Armenian Government’s submission that the Court had no temporal jurisdiction, owing to the fact that Armenia only became a state party to the convention in 2002, was rejected in a decision of the Court on 14 December 2011 and affirmed in this judgment. Although the events themselves which led directly to displacement took place in 1992, the situation was seen as continuing owing to the ongoing lack of access to the homes which legally belonged to the Applicants. The Court, therefore, had competence to examine since Armenia’s 2002 ratification.
This judgment is usefully read together with other decisions of the Court concerning other rights considered to have retrospective effect. The decision in Silih v Slovenia (see UKHRB’s previous post) considered a State’s obligation to investigate deaths under the procedural head of Article 2 in respect of deaths occurring prior to the Convention having legal effect in the relevant State. The case suggested that governments ratifying the Convention after a particular breach has taken place may still have a procedural obligation to investigate the said breach. The intention was not to make the Court’s temporal jurisdiction ‘open ended’ (para 161) but to place an obligation on State Parties where there is a
genuine connection between the death and the entry into force of the Convention in respect of the respondent State for the procedural obligations imposed by Article 2 to come into effect’ (para 163).
The Court was careful to clarify there that the failure to investigate does not ‘in itself, give rise to a continuing situation’, Varnava (para 149), but scope is certainly created for claims to be brought relating to events taking place prior to ratification.
Clarification could come through a number of test cases due before the ECtHR (Tuna v Turkey App No 22339/03 and Halide Cakir and Others v Cyprus App No 7864/06). Perhaps Silih will prove further important in those as, at para 163, it was suggested that the ‘genuine connection’ ‘could also be based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner’. Similarly Chiragov may serve to create precedent for judgments being handed down concerning events which took place prior to ratification.
The Court rejected the Armenian Government’s submission that the Lachin district was outside its territorial jurisdiction applying the decision in Al-Skeini and others v United Kingdom (App No 55721/07) (refer to UKHRB post here). That case confirmed that the Court recognises the exercise of extra-territorial jurisdiction by a State Party when this State, through effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government.
The military involvement of Armenia in the NKR was the principal reason for dismissing the Respondent Government’s argument, but other evidence demonstrating political and economic dependence was important. For example, many prominent NKR politicians transferred into high profile roles in the Armenia government and residents of the NKR can obtain Armenian passports since the NKR is not recognised internationally. These links were seen by the Court to demonstrate that from the early days of the Nagorno-Karabakh conflict, Armenia has had a significant and decisive influence over the “NKR”, that the two entities are highly integrated in virtually all important matters and that this situation persists to this day. The Court by giving emphasis to these other factors perhaps indicates a greater willingness to broaden out the meaning of “effective control” of States which are parties to conflict yet their involvement fails to fall within neat classifications (gravely at the expense, in the view of the dissenting Judges Pinto de Albuquerque and Gyulumyan, of legal certainty).
6 Month Rule
In the decision of 14 December 2011, reaffirmed in this judgment, the Court rejected the Respondent Government’s submission that the case was inadmissible due to the passing of the 6 month time limitation under Article 35. The Court observed that in the case of Varnava and Others v. Turkey (App No 16064/90 et al) it had not laid down the application of a strict six-month time-limit for disappearance cases, let alone for continuing situations (such as in Chiragov) in general. In the interests of legal certainty, however, it had imposed a duty of diligence and initiative on applicants. Both types of case concerned complaints about continuing violations in a complex post-conflict situation affecting large groups of persons. In such contexts, domestic remedies are likely to be practically difficult, if available at all, and it may, therefore, be reasonable for applicants to await the outcome of political processes such as peace talks and negotiations that might offer the only realistic hope of a solution.
In Chiragov the Applicants could only have brought a case on ratification in 2002. At that time, in the context of their accession to the Council of Europe, Armenia and Azerbaijan had given a joint undertaking to seek a peaceful settlement of the Nagorno-Karabakh conflict and a period of intensified contacts and negotiations had followed. The Applicants could, therefore, for some time have reasonably expected that a solution to the conflict would eventually be achieved and a domestic remedy become available. Furthermore, the personal situations of the Applicants were taken into account and, as IDPs, they were members of a particularly underprivileged and vulnerable population. The application came about three years after Armenian ratification of the Convention meaning the Applicants were acting, the Court stated, without undue delay and not out of time.
Aarif Abraham is the Legal officer at the Democratic Progress Institute (DPI). The Applicants were represented by a team from the International Law Department headed up by Deputy Director Catriona Vine, , Director Kerim Yildiz, and Mark Muller QC, member of DPI Council of Experts.
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