- Council of Europe materials
- Council of Europe bodies have repeatedly addressed issues of property restitution to internally displaced persons (IDPs) and refugees. The following Resolutions and Recommendations are of particular relevance in the context of the present case:
- “Solving property issues of refugees and displaced persons”, Parliamentary Assembly (PA) Resolution 1708 (2010)
- The Parliamentary Assembly noted 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 (paragraph 2). It underlined the importance of restitution:
“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.
- 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.
- 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…”
- “Refugees and displaced persons in Armenia, Azerbaijan and Georgia”, PA Resolution 1497 (2006)
- 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.”
- Recommendation of the Committee of Ministers to member states on internally displaced persons, Rec(2006)6
- 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 their property left behind following their displacement. If internally displaced persons are deprived of their property, such deprivation should give rise to adequate compensation.”
- 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 (Sargsyan v. Azerbaijan [GC] (dec.), No. 40167/06, §§ 1 and 51, 14 December 2011).
- 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.
- Furthermore, the Court reiterates that, in its decision on the admissibility of 14 December 2011 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 lack of jurisdiction ratione temporis and failure to respect the six-month rule (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 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 (Sargysan (dec.), cited above, §§ 76, 99 and 111).
- The Court considers it appropriate to deal with the questions of exhaustion of domestic remedies and of 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.
- Exhaustion of domestic remedies
- 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.”
- The parties’ submissions
- The applicant
- The applicant relied on three main arguments in order to show that he was not required to exhaust any domestic remedies.
- 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 referred to 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.
- By way of comparison the applicant referred to the Court’s decision in Demopoulos and Others v. Turkey [GC] (dec.) (Nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, ECHR 2010) in which the Court had developed criteria for assessing the effectiveness of a remedy designed to provide redress for loss of property and home in the context of an international conflict. None of these criteria were met by the remedies referred to by the Government.
- 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 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 respondent Government to protect abandoned property of ethnic Armenians, which was often occupied by refugees or internally displaced persons, 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.
- Finally, the applicant argued that in any case he was absolved from pursuing any remedies due to his personal circumstances. Having had to flee from 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.
- The respondent Government
- The respondent Government asserted that, in so far as they had effective control over the territory of the Republic of Azerbaijan, 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.
- 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 the son of the deceased, who were both living in the United States of America. The appellate court overturned the first instance’s judgment dismissing the latter’s assessment that the defendants had to be considered as heirs in bad faith. In the case of Sinyukova, Korovkova and Zaimkina (“Chagaryan”, judgment of the Chamber of Civil Cases of Shaki Court of Appeal of 7 November 2007) the appellate court decided that the State Notary’s 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.
- 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.
- The Armenian Government, third-party intervener
- 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.
- The Court’s assessment
- 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 therein 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; Niazi Kazali and Hakan Kazali v. Cyprus (dec.), No. 49247/08, § 132, 6 March 2012).
- 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 (further case references – in brackets – deleted):
“65. The Court recalls that the rule of exhaustion of domestic remedies referred to in Article  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 (…).
- Under Article  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  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 (…).
- 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 (…).
- 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.
- 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  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.”
- 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).
- 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, i.e. an Armenian refugee who had to leave 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.
- 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 at issue may have on the operation of domestic remedies.
- 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
- The parties’ submissions
- The applicant
- The applicant pointed out that Gulistan was within the internationally recognised territory of the Republic of Azerbaijan. It followed that the onus was on the respondent Government to rebut the presumption of jurisdiction in relation to the area of Gulistan for the period since 15 April 2002 to 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.
- In the alternative, the applicant asserted that even if it were established that Azerbaijan lacked control over the area at 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 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).
- The respondent Government
- The respondent 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 the 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 underlined that the village was within the shooting range of the Armenian positions situated on a rising slope above the river. The Government of Azerbaijan was thus unable to exercise its legitimate authority in the area.
- 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 (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).
- The Armenian Government, third-party intervener
- 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 to 53 above) and to the evidence they had submitted (see paragraphs 69 to 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.
- The Court’s assessment
- Relevant case-law principles in respect of the presumption of territorial jurisdiction
- The relevant principles have been set out by the Court in Assanidze v. Georgia [GC], No. 71503/01, §§ 137 – 143, ECHR 2004-II and subsequently in and Others (cited above, §§ 311 – 313, and §§ 333 – 335).
- 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.
- 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.
- 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, and Others v. Moldova and Russia (dec.) [GC], No. 48787/99, 4 July 2001, and Loizidou, cited above). 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).
- 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.
- 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.”
- In the and Others judgment (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.
- 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; 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 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, §§ 76 – 80, cited above, and also cited in the above-mentioned 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.
- 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.
- 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 foreign States and international organisations, to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention.
- 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.
- 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”, over which it exercises no effective authority, is to be assessed in the light of its positive obligations under the Convention.”
- 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 (and Others, cited above, § 313).
- 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 (and Others, cited above, § 333; see also Catan and Others v. Moldova and Russia [GC], Nos. 43370/04, 8252/05 and 18454/06, § 109, ECHR 2012 (extracts)).
- 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 (ibid., § 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 re-assert its sovereignty over the territory and to refrain from any acts supporting the separatist regime (ibid., §§ 340 – 345). Under the second head the State must take judicial, political, or administrative measures to secure the applicant’s individual rights (ibid., § 346).
- Application of these principles to the present case
(a) The Court’s establishment of the facts
- 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 entered into force in respect of Azerbaijan, to the present day.
- 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.
- The Court notes that the parties concur on a number of points: it is not in dispute that Gulistan is situated on the internationally recognized 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. At least, the surroundings of the village are mined and ceasefire violations occur frequently.
- 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.
- It follows from the available material and in particular from the maps submitted by each of the parties and the intervening 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.
- 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 are well visible 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 have fallen 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.
- 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
- Given that Gulistan is situated on the internationally recognised territory of Azerbaijan, the presumption of jurisdiction applies (see 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.
- 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 the and Others case 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 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 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 – 140) 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.
- 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 and Others, cited above, §§ 392 – 394; and Others, cited above, §§ 118 – 120; Catan and Others, cited above, § 122).