In the absence of a political solution to the Nagorno-Karabakh conflict, the Court awarded the applicants aggregate sums in just satisfaction
ECtHR Registrar (12.12.2017) – http://bit.ly/2Az3hl7 – In today’s Grand Chamber judgment1 in the case of Chiragov and Others v. Armenia (application no. 13216/05) the European Court of Human Rights ruled on the question of just satisfaction. It held, unanimously, that the Armenian Government had to pay 5,000 euros in respect of pecuniary and non-pecuniary damage to each of the applicants and a total amount of 28,642.87 pounds sterling for costs and expenses.
The case concerned the complaints by six Azerbaijani refugees that they were unable to return to their homes and property in the district of Lachin, in Azerbaijan, from where they had been forced to flee in 1992 during the Nagorno-Karabakh conflict.
The Court observed that the principle of subsidiarity underpinned the system of the European Convention on Human Rights. Thus, Armenia and Azerbaijan had given undertakings prior to their accession to the Council of Europe, committing themselves to the peaceful settlement of the Nagorno-Karabakh conflict. The Court could only underline that it was their responsibility to find a solution on a political level to the conflict. Without prejudice to any compensation to be awarded to the applicants as just satisfaction, the effective execution of the principal judgment called for the creation of general measures at national level.
The Court also noted that the damage did not lend itself to precise calculation. Certain difficulties in assessing the damage derived from the passage of time: the time element made the link between a breach of the Convention and the damage less certain. In conclusion, the Court underlined the responsibility of the two States concerned to find a resolution to the Nagorno-Karabakh conflict. Pending a solution on the political level, the Court considered it appropriate to award the applicants aggregate sums for pecuniary and non-pecuniary damage.
The applicants, Elkhan Chiragov, Adishirin Chiragov, Ramiz Gebrayilov, Akif Hasanof, Fekhreddin Pashayev and Qaraca Gabrayilov are Azerbaijani nationals. The sixth applicant died in 2005; the application was pursued on his behalf by his son.
The applicants submitted that they were Azerbaijani Kurds who lived in the district of Lachin, in Azerbaijan. They stated that they were unable to return to their homes and property there, after having been forced to leave in 1992 during the conflict over Nagorno-Karabakh. Since then they had not been able to return to their homes and properties because of the Armenian occupation. In a judgment of 16 June 2015 the Court held that there had been continuing violations of Article 8 (right to respect for home and private and family life) and Article 13 (right to an effective remedy) of the European Convention on Human Rights and of Article 1 of Protocol No. 1 (protection of property) to the Convention. With respect to Article 1 of Protocol No. 1, it concluded that, as from 26 April 2002 – the date on which Armenia had ratified the Convention – no aim had been indicated which could justify the denial of access of the applicants to their property and the lack of compensation for that interference. The Court found the Republic of Armenia responsible for the breaches of the applicants’ rights.
As the question of just satisfaction was not ready for decision, the Court reserved it and invited the parties to submit their written observations on that issue and to notify the Court of any agreement they might reach.
Complaints, procedure and composition of the Court
Relying on Article 41 (just satisfaction), the applicants sought just satisfaction amounting to several million euros in respect of damage sustained and of costs and expenses.
The application was lodged with the European Court of Human Rights on 6 April 2005. On 9 March 2010 the Chamber to which the case had been assigned relinquished jurisdiction in favour of the Grand Chamber. The Azerbaijani Government were given leave to intervene as a third party. A first Grand Chamber hearing was held on 15 September 2010.
In a decision of 14 December 2011, the Court declared the complaints admissible. A second hearing was held on 22 January 2014. The Grand Chamber delivered its judgment on the merits on 16 June 2015.
Today’s judgment on just satisfaction was given by the Grand Chamber of 17 judges.
Decision of the Court
In its principal judgment the Court referred to the exceptional nature of the case, owing to a number of features. The case related to an ongoing conflict situation and the parties had still not reached a peace agreement. Despite a ceasefire agreement concluded 23 years ago, the ceasefire was still not observed. Whereas the events that had led the applicants to flee their property and homes had occurred in May 1992, the Republic of Armenia had not ratified the Convention until ten years later, on 26 April 2002. The Court concluded that from the date of entry into force of the Convention in respect of Armenia, the latter had been responsible for continuing violations of the applicants’ rights under Article 1 of Protocol No. 1 and Articles 8 and 13 of the Convention.
The Court was thus dealing with a continuing situation which had its roots in the unresolved conflict over Nagorno-Karabakh and the surrounding territories and still affected a large number of individuals. More than 1,000 individual applications lodged by persons who had been displaced during the conflict were pending before the Court, slightly more than half of them being directed against Armenia and the remainder against Azerbaijan. The applicants in those cases represented just a small portion of the persons, estimated to exceed one million, who had had to flee during the conflict and had since been unable to return to their properties and homes or to receive any compensation.
The Court considered it appropriate to emphasise the principle of subsidiarity. As to the political dimension, Armenia and Azerbaijan had committed themselves prior to their accession to the Council of Europe, to the peaceful settlement of the Nagorno-Karabakh conflict. By now, some 15 years had passed since the ratification of the Convention by the two States without a political solution of the conflict being in sight. The Court could only underline that it was their responsibility to find a solution to the conflict on a political level.
With regard to the legal dimension, the Court reiterated that the principle of subsidiarity underpinned the Convention system. By virtue of Article 1 of the Convention (obligation to respect human rights), the Contracting States had to secure the rights and freedoms guaranteed by the Convention to everyone within their jurisdiction, while, in accordance with Article 19 (establishment of the Court), it was for the Court to ensure the observance of the engagements undertaken by the States. It was precisely a failure on the part of the Government which obliged the Court to act as a court of first instance, establishing the relevant facts, evaluating evidence in respect of property claims and finally assessing monetary compensation.
Without prejudice to any compensation to be awarded as just satisfaction, the effective execution of the principal judgment called for the creation of general measures at national level. Guidance as to appropriate measures had been given in the principal judgment, where the Court had stated that pending a comprehensive peace agreement, it appeared particularly important “to establish a property claims mechanism, which should be easily accessible and provide procedures operating with flexible evidentiary standards, allowing the applicants and others in their situation to have their property rights restored and to obtain compensation for the loss of their enjoyment”.
The Court concluded overall that the applicants were entitled to compensation for certain pecuniary losses and for non-pecuniary damage, the pecuniary and non-pecuniary damage being closely connected in the present case.
The Court noted, however, that the damage sustained did not lend itself to precise calculation. Certain difficulties in assessing the damage derived from the passage of time. The time element made the link between a breach of the Convention and the damage less certain. The period over which the Court had jurisdiction had started 15 years ago in April 2002, that is, ten years after the military attack and the applicants’ flight in May 1992. The Court considered that an award could still be made, notwithstanding the large number of imponderables involved.
Lastly, the Court reiterated that it was the responsibility of the two States concerned to find a resolution to the Nagorno-Karabakh conflict. Pending a solution on the political level, it considered it appropriate to award aggregate sums for pecuniary and non-pecuniary damage.
Just satisfaction (Article 41)
The Court held that Armenia was to pay each of the applicants 5,000 euros (EUR) covering all heads of damage, plus 28,642.87 pounds sterling to all the applicants in respect of costs and expenses.
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