Постановление ЕСПЧ от 16.06.2015 «Дело «Саргсян (Sargsyan) против Азербайджана» (жалоба N 40167/06) [англ.] Часть 2

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  1. The joint undertaking of Armenia and Azerbaijan

 

  1. 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 (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.

  1. 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:

  1. as regards the resolution of the Nagorno-Karabakh conflict:
  2. to continue efforts to settle the conflict by peaceful means only;
  3. 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 concerning 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 Government of Azerbaijan.

 

III. Relevant domestic law

 

  1. The laws of the Azerbaijan SSR

 

  1. The laws relevant to the applicant’s right to property were the 1978 Constitution of the Azerbaijan SSR and its Land Code of 1970 and Housing Code of 1983.

 

  1. The 1978 Constitution

 

  1. The Constitution stated as follows:

Article 13

«The basis of the personal property of citizens of the Azerbaijan SSR is 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 construction of individual housing. Citizens are required to use their land rationally. State and collective farms provide assistance to citizens for their small land holdings.

Personal property or property with a right of use may not be utilised to derive unearned income to the detriment of the public interest.»

 

  1. The 1970 Land Code

 

  1. The relevant provisions of the Land Code stated the following:

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 is certified by a State certificate on the right of use.

The form of the certificate is 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 is 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 are issued to collective farms, State farms and other State, cooperative and public institutions, agencies and organisations as well as 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 are 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 needs as well as to use other valuable properties of a land.

Article 126-1. Right of use of land in case of inheritance of ownership right 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 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, from land belonging to cities and urban settlements; from villages’ land that is not used by collective farms, state farms or other agricultural enterprises; from land of the State reserve; and from 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 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 a form of stand-alone residential districts or settlements.»

 

  1. The 1983 Housing Code

 

  1. 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.»

 

  1. The 1985 Instruction on Rules of Registration

of Housing Facilities

 

  1. The 1985 Instruction, in Article 2, listed the documents that served as evidence of title to a residential house. The Instruction was approved by the USSR Central Statistics Department through Order No. 380 of 15 July 1985. Article 2.1 enumerated 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 when they contain an exact reference to possession by owner of duly formalised document certifying his 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 reorganized as a city (village), the basis for registration performed pursuant to these Instructions shall be household lists, extracts from them, statements from the Village or Regional Executive Committee 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.»

 

  1. The 1958 Charter on Village Councils of Deputies of the Workers of the Azerbaijan SSR

 

  1. In addition, according to the applicant, the Charter on Village Councils of 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 to the land in the early 1960s. The Government contested that.

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 fund to inhabitants for private construction; shall have control over 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 registration of family property divisions in collective farms (peasant households).»

 

  1. The laws of the Republic of Azerbaijan

 

  1. The 1991 Order on «Provision of Housing of Citizens who Forcibly Left Places of Permanent Residence (Refugees)»

 

  1. On 6 November 1991 the Supreme Soviet of the Republic of Azerbaijan issued an Order on «Provision of Housing of Citizens who Forcibly Left 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.

Section 8

«To instruct the Soviets of People’s Deputies of the cities of Sumgayit, Gandja, 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 part of refugees have exchanged their privately owned houses to the State owned apartments in the cities, to instruct the local bodies of executive authority to transfer these apartments into private ownership of the refugees, after the adoption of the relevant law on privatization.

To declare the housing facilities constructed by various ministries, institutions and organizations of the Republic 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.»

  1. 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.
  2. On 9 November 1991 the Republic of 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 privatization of land allotted to citizens were only introduced later, by the 1996 Law on Land Reform.

 

  1. The 1991 Law on Property

 

  1. The 1991 Law on Property in the Republic of Azerbaijan entered into force on 1 December 1991. It stated, inter alia, the following:

Article 21. Objects of proprietary rights of the citizen

«1. A citizen may possess:

— plots of land;

— houses, apartments, country houses, garages, domestic utensils and articles for private use;

— shares, bonds and other securities;

— facilities of mass media;

— enterprises and property complexes for production of goods destined for the consumer, social and cultural markets, with the exception of certain types of property specified by law which cannot be owned by citizens for reasons of state or public security or due to international obligations.

  1. A citizen who owns an apartment, residential house, country house, garage or other premises or structures has the right to dispose of this property at his own will: to sell, bequeath, give away, rent or to take other action not in contravention of the law.»

 

  1. The 1992 Land Code

 

  1. The new Land Code, which entered into force on 31 January 1992, contained the following provisions:

Article 10. Private ownership of plots of land

«Plots of land are allocated for private ownership to the citizens of the Republic of Azerbaijan 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 the activity of farms and other organisations that are involved in the production of agricultural products for sale;

3) for the constructions of private and collective country houses and private garages within the bounds of cities;

4) for constructions connected to business activities;

5) for the activity of traditional ethnic production.

Under the legislation of the Republic 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 is 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 are transferred into their ownership.

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 can 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

«Land plots 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 examination of a request for allocation or seizure of a plot of land, including seizure of a plot of land for State or public needs, shall be determined by the Cabinet of Ministers of the Republic of Azerbaijan.

Citizens’ requests for 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.»

 

  1. The 1995 Constitution

 

  1. The 1995 Constitution protects the right to property and provides for State liability in respect of any damage resulting from illegal actions or omissions of State bodies and their officials.

The relevant provisions of the Constitution are the following:

Article 29

«I. Everyone has the right to own property.

  1. Neither kind of property has priority. Ownership rights, including the rights of private owners, are 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 the property himself or herself or jointly with others.

  1. Nobody shall be deprived of his or her property without a court decision. Total confiscation of property is not permitted. Transfer of property for State or public needs is permitted only on condition of prior payment of fair compensation.
  2. The State guarantees succession rights.»

Article 68

«I. The rights of victims of crime or of usurpation of power are protected by law. The victim has the right to take part in the administration of justice and claim compensation for damage.

  1. Everyone has the right to compensation from the State for damage incurred as a result of illegal actions or omissions of State bodies or officials.»

 

  1. The Civil Code

 

  1. Provisions of the Civil Code in force before 1 September 2000:

Article 8. Application of civil legislation of other union republics in 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 another’s unlawful possession.»

Article 144. Recovery of unlawfully transferred State, cooperative or other 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 another’s unlawful possession, the owner shall have the right to claim from that person, if he knew, or should have known, that he was in unlawful possession (owner in bad faith), compensation for any income which he has derived, or should have derived, over the entire period of possession, and from a person in bona fide possession compensation for any income which he has derived, or should have derived, from the time when he 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 entailing deprivation 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 deprivation of possession.»

Article 148. Protection of rights of persons in possession who are not owners

«The rights stipulated in Articles 142 — 147 of the present Code shall also vest in a person who, even though he is not the owner, 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.»

  1. 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 losses inflicted on him, unless a smaller amount has been stipulated by the law or by the contract.

21.2 By losses shall be understood 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 done to his property (the compensatory damage), and the unreceived profits which he or she would have gained under the ordinary conditions of the civil transactions if the right had not been violated (the missed profit).»

Article 1100. Responsibility for losses caused by State bodies, local self-government bodies or their officials

«Losses inflicted upon an individual or legal entity as a result of illegal actions or omissions on the part of State bodies, local self-government bodies or their officials, including the adoption by the State body or the local self-government body of an unlawful measure, shall be liable to compensation by the Republic of Azerbaijan or by the relevant municipality.»

 

  1. The Code of Civil Procedure

 

  1. 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 the 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.»

  1. Provisions of the Code of Civil Procedure in force from 1 June 2000:

Article 8. Equality of all 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 of 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 the legislation.»

Article 307. Cases concerning the establishment of facts of legal significance

«307.1 The court 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 The court 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 of application

«309.1 Applications concerning the establishment of facts of legal significance shall be lodged with the 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 the court at the place where the immovable property is situated.»

Article 443. Jurisdiction of the courts of the Azerbaijan Republic relating to cases with the participation of foreigners

«443.0 The courts of the Azerbaijan Republic shall have the right to hear the following cases with the participation of foreigners:…

443.0.6 where, in cases relating to compensation for losses for damage inflicted on property, the action or other circumstance serving as the ground for lodging the claim for compensation of losses has occurred on the territory of the Azerbaijan Republic.»

 

  1. Declaration made by the respondent government upon ratification of the Convention

 

  1. The instrument of ratification deposited by the Republic of 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.»

 

  1. Relevant international law

 

  1. Article 42 of the Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereafter «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 <*>. The requirement of actual authority is widely considered to be synonymous to that of effective control.

———————————

<*> See, for example, E. Benvenisti, The International Law of Occupation (Oxford: Oxford University Press, 2012) at p. 43; Y. Arai-Takahashi, The law of occupation: continuity and change of international humanitarian law, and its interaction with international human rights law (Leiden: Martinus Nijhoff Publishers, 2009), at p. 5 — 8; Y. Dinstein, The International Law of Belligerent Occupation (Cambridge: Cambridge University Press, 2009) at 42 — 45, §§ 96 — 102; and A. Roberts, «Transformative Military Occupation; Applying the Laws of War and Human Rights», 100 American Journal of International Law 580 (2006) 585 — 586.

 

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 <*>, i.e. 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 <**>.

———————————

<*> Most experts consulted by the ICRC in the context of the project on occupation and other forms of administration of foreign territory agreed that «boots on the ground» are needed for the establishment of occupation — see T. Ferraro, Occupation and other Forms of Administration of Foreign Territory (Geneva, ICRC, 2012), at 10, 17 and 33; see also E. Benvenisti, cited avove, at p. 43ff; V. Koutroulis, Le debut et la fin de l’application du droit de l’occupation (Paris: Editions Pedone, 2010) at pp. 35 — 41.

<**> T. Ferraro, cited above, at pp. 17 and 137; Y. Dinstein, cited above, at p. 44, § 100.

 

  1. The rules of international humanitarian law do not explicitly address the issue of preventing access to homes or property. However, Article 49 of Convention [No. IV] relative to the Protection of Civilian Persons in Time of War of 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 of the ICRC Study on Customary International Humanitarian Law <*>) that applies to any kind of territory.

———————————

<*> J.-M. Henckaerts, and L. Doswald-Beck, Customary International Humanitarian Law, (Geneva/Cambridge: ICRC/Cambridge University Press, 2005).

 

  1. Relevant united nations and council of Europe materials

 

  1. United Nations materials

 

  1. The «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) are the most complete standards on the issue. They are also known as the Pinheiro principles. 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:

  1. 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.»

  1. 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.»

  1. 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…»

  1. 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…

…»

  1. 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.

…»

  1. Compensation

«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.

…»

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