Постановление ЕСПЧ от 16.06.2015 «Дело «Саргсян (Sargsyan) против Азербайджана» (жалоба N 40167/06) [англ.] Часть 4

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  1. The present case differs from the above-mentioned cases: Gulistan is on the frontline between Azerbaijani and «NKR» forces and it is in dispute whether Azerbaijan has effective control of the village. The Court notes that on the basis of its case-law the respondent Government would have to show that another State or separatist regime has effective control over Gulistan where the alleged violations of the Convention take place.
  2. At this point the Court considers it useful to reiterate that Azerbaijan has deposited a declaration with its instrument of ratification expressing that it was «unable to guarantee the application of the provisions of the Convention in the territories occupied by the Republic of Armenia» (see paragraph 93 above). In its decision on the admissibility of the present case, the Court has held that the declaration was not capable of restricting the territorial application of the Convention to certain parts of the internationally recognised territory of Azerbaijan (Sargsyan (dec.), cited above, §§ 63 — 65) nor did it fulfil the requirements of a valid reservation (ibid., §§ 66 — 70).
  3. The Court notes that under international law (in particular Article 42 of the 1907 Hague Regulations) a territory is considered occupied when it is actually placed under the authority of a hostile army, «actual authority» being widely considered as translating to effective control and requiring such elements as presence of foreign troops, which are in a position to exercise effective control without the consent of the sovereign (see paragraph 94 above). On the basis of all the material before it and having regard to the above establishment of facts, the Court finds that Gulistan is not occupied by or under the effective control of foreign forces as this would require a presence of foreign troops in Gulistan.
  4. In fact, it appears that the respondent Government have not maintained their initial position that they had no effective control over Gulistan. Rather they argued that it was in a disputed area, underlining that it was surrounded by mines, encircled by opposing military positions on either side of the river and came within the shooting range of the Armenian forces.
  5. In essence the respondent Government argued that the Court’s case-law developed in and Others and subsequent cases, which accepts that a State that has lost effective control over part of its territory to another State or separatist regime, has limited responsibility under the Convention, should equally be applied to disputed zones or, as they expressed it at the hearing of 5 February 2014, «areas which are rendered inaccessible by the circumstances».
  6. In addressing this question the Court must bear in mind the special character of the Convention as a constitutional instrument of European public order (ordre public) for the protection of individual human beings and its role, as set out in Article 19 of the Convention «to ensure the observance of the engagements undertaken by the High Contracting Parties» (see, Loizidou v. Turkey (preliminary objections), 23 March 1995, §§ 75 and 93, Series A No. 310; Al-Skeini and Others v. the United Kingdom [GC], No. 55721/07, § 141, ECHR 2011). When Azerbaijan ratified the Convention on 15 April 2002, the whole of its territory entered the «Convention legal space».
  7. In the above-cited cases concerning Moldova the acceptance that the territorial State had only limited responsibility under the Convention was compensated by the finding that another Convention State exceptionally exercised jurisdiction outside its territory and thus had full responsibility under the Convention. In contrast, in the present case it has not been established that Gulistan is occupied by the armed forces of another State or that it is under the control of a separatist regime. In such circumstances the Court, taking into account the need to avoid a vacuum in Convention protection, does not consider that the respondent Government has demonstrated the existence of exceptional circumstances of such a nature as to qualify their responsibility under the Convention.
  8. The Court is therefore not convinced by the Government’s argument. The exception developed in and Others (cited above, §§ 312 — 313), namely the limitation of the territorial State’s responsibility in respect of parts of its internationally recognized territory which are occupied or under the effective control of another entity can therefore not be extended to disputed areas as was suggested by the Government.
  9. In fact, the situation at stake in the present case is more akin to the situation in Assanidze (cited above, § 146) in that, from a legal point of view the Government of Azerbaijan have jurisdiction as the territorial state and full responsibility under the Convention, while they may encounter difficulties at a practical level in exercising their authority in the area of Gulistan. In the Court’s view such difficulties will have to be taken into account when it comes to assessing the proportionality of the acts or omissions complained of by the applicant.
  10. In conclusion, the Court finds that the facts out of which the alleged violations arise are within the «jurisdiction» of Azerbaijan within the meaning of Article 1 of the Convention and are capable of engaging the responsibility of the respondent Government. Consequently, it dismisses the Government’s objection concerning lack of jurisdiction and responsibility which had been joined to the merits in the admissibility decision (Sargsyan (dec.), cited above, § 76).

 

  1. Alleged violation of Article 1 of Protocol No. 1 to the Convention

 

  1. The applicant complained that the denial of his right to return to the village of Gulistan and to have access to, control, use and enjoy his property or to be compensated for its loss amounted to a continuing violation of Article 1 of Protocol No. 1 which reads as follows:

«Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.»

  1. The Government contested the applicant’s position, advancing three main lines of argument: they asserted, firstly, that although Gulistan was on the internationally recognised territory of Azerbaijan and thus within Azerbaijan’s jurisdiction within the meaning of Article 1 of the Convention, they did not have sufficient control over the area to be held responsible for the alleged violation. Secondly, they argued that the applicant had failed to show that he had actually had a house and land in Gulistan. Thirdly, the Government submitted that even if the Court were to dismiss their argument on the first two points, there had been no violation of the applicant’s rights as they had complied with their obligations under the Convention.

 

  1. Whether the applicant had «possessions» in Gulistan
  1. The parties’ submissions

 

(a) The applicant

  1. The applicant maintained that he had submitted sufficient evidence to show that he had lived in Gulistan with his family until June 1992 and had owned a house and land of some 2,100 sq. m and other possessions there. He referred in particular to the technical passport of the house, established in May 1991, and to the plan of the house, underlining that he had submitted both documents already when he lodged the application.
  2. He asserted that he had obtained the land by a decision of the Village Council in the early 1960s granting permission to divide his father’s plot of land between him and his brother. He contested the Government’s assertion that the Village Council had no power to allocate land. He noted firstly, that the Government referred to the 1970 Land Code, according to which the power to allocate land was vested in the Executive Committees of the Soviet of the People’s Deputies of the districts and cities. In the early 1960s the Village Councils had power to allocate land. They also had to keep a register, recording among other data the division of property of households in the village. These powers were regulated by the Charter on Village Councils (see paragraph 82 above) which had entered into force on 23 April 1958 and had been in force at the material time, i.e. in the early 1960s. Section 2 paragraph 9(j) of the Charter on Village Councils empowered the Village Council to allocate state-owned land to citizens for individual construction within the borders of the village. Pursuant to section 2 paragraph 19(e) of the Charter the Village Council had the power to register the division of land of households in the village.
  3. Furthermore, the applicant repeated that the «technical passport» which he had already submitted with the application was a duly established, valid document and was sufficient proof of his right to the house and land. He contested the Government’s assertion that the technical passport was deficient, addressing each of the points raised by the Government.
  4. In so far as the Government had asserted that the technical passport was deficient in that it lacked a reference to a primary title of ownership, the applicant argued that no such reference was required in his case. While he agreed with the Government that the 1985 Instruction (see paragraph 81 above) applied to the registration process, he maintained that the registration of property in rural areas was governed by Article 2.3 of the said instruction, according to which the basis for registration were «the list of homesteads, abstracts from them, [or] statements from the Village or Regional Executive Committee of People’s Deputies». He maintained that the list of homesteads (or lists of households as the term was also sometimes translated) meant the register of the Village Council. Finally, he noted that the technical passport submitted by him had been established on the basis of the relevant sample form provided by the Central Statistics Department of the USSR. That form did not require making a reference to any primary title of ownership.
  5. Turning to the Government’s argument that the technical passport was deficient as the field «description of the size of the land according to the official documents» was empty, the applicant asserted that the technical passport had been drawn up by officials from the Bureau of Technical Inventory of the Shahumyan region, who would not have signed it had it been incomplete. Moreover, he submitted technical passports which had been issued to other former villagers of Gulistan in 1991 and in which the said field was also empty, and argued that his technical passport corresponded to the relevant registration practice at the time.
  6. Finally, the Government had argued that the technical passport, which was dated May 1991, might be a forgery as the stamp used was still one of the «Azerbaijan SSR» and referred to the «Shahumyan region» although the State had been renamed to «Republic of Azerbaijan» and the former «Shahumyan region» had been incorporated into the Goranboy region in February 1991. In reply, the applicant referred to his own statement of 10 July 2006 and the statements of a number of former neighbours and friends from Gulistan submitted in 2010, who all confirmed that the whole Shahumyan region, which was inhabited by a majority of Armenians and of which Gulistan was part, had been subjected to a blockade by Azerbaijan from 1989 — 1992. On account of the blockade, the whole region was cut off: television stations had been bombed and there was no electricity and villagers and even officials in Gulistan were not aware and had not received any information by the authorities that the Azerbaijan SSR and Shahumyan region had been renamed. Moreover, the applicant observed that the Government only claimed that the new stamp designating the Republic of Azerbaijan should have been used, but that they had not submitted any evidence that the stamps had actually been changed at the time.
  7. Furthermore, in reply to the Court’s question relating to a possible contradiction in the application form regarding the question whether or not the applicant’s house had been destroyed in 1992, the applicant explained that the contradiction stemmed from confusion between his own and his parents’ house. The applicant pointed out that the application form, prepared by his representative, had been based on his statement drawn up on 10 July 2006. In that statement he did not speak about the destruction of his own house but used the phrase «My mother stayed in the village of Gulistan and our house was destroyed». It was common in the village to refer to the parents’ house as one’s own house.
  8. In respect of the current state of the house, the applicant submitted that it was difficult to obtain information, as it was not possible to return to Gulistan. At best it was possible to view the village from the «NKR» border with binoculars. In that connection he referred to the statements of three former villagers of March 2012 (see paragraph 59 above). The applicant submitted an additional statement of 12 August 2013 by a former villager from Gulistan, who reported that he had carried out construction work on a site in the «NKR» near Gulistan in 2010 and had once gone to a viewpoint and looked at the village with binoculars and had been able to distinguish the applicant’s house. According to him its walls were still standing, but the roof was dilapidated.
  9. In sum, the applicant maintained that the technical passport submitted by him was sufficient proof of his right to «use, possess and enjoy» the house in question, but concedes that under the law in force at the time of his displacement he had not been entitled to sell the house. However, he could have expected to transform his rights into private property as provided for by the 1991 Law on Property. To his knowledge his rights had not been annulled and he was therefore still legally entitled to the property at issue.

(b) The respondent Government

  1. The Government asserted that the burden was on the applicant to prove, beyond reasonable doubt, that he was the owner or had title to the property which was the subject of his application.
  2. The Government submitted that it could not be verified whether the applicant had actually lived in Gulistan or whether he had any possessions there. No documents relating to the applicant or the plot of land, house or other buildings allegedly owned by him were available in the Goranboy regional archives. Moreover, certain archives of the former Shahumyan region, including the Civil Registry Office and the Passport Office had been destroyed during the hostilities. The main document submitted by the applicant, namely the technical passport of the house, was deficient and therefore did not prove that he was the owner of a house and land. His own statements and the statements of witnesses submitted by him contained numerous contradictions, for instance in respect of the number of rooms of the applicant’s house and the size of his plot of land, and were thus unreliable in their entirety.
  3. In respect of the applicant’s alleged property in Gulistan the Government argued in the first place, that he had only complained about the house which appeared to have been destroyed before the entry into force of the Convention in respect of Azerbaijan. His complaint therefore fell outside the Court’s competence ratione temporis.
  4. Insofar as the applicant might be understood as complaining in respect of the land, the Government argued that his assertion that he had obtained permission of the Village Council to divide his father’s land was not credible for a number of reasons. The statements of former members of the Village Council submitted by the applicant were not coherent. According to two statements the Village Council had divided the plot of the applicant’s father between the applicant and his brother while according to another statement the Village Council had taken a decision to allocate land to the applicant. In any case, the procedure described by the applicant was not in accordance with the administrative structures and laws in force in the 1960s: the Village Council was not entitled to allocate land. In the 1960s, no specific laws, apart from the Constitution existed on the right to use land. The 1970 Land Code of the Azerbaijan SSR codified the practice which had existed already before: it laid down that only the Executive Committee of the Soviet of the People’s Deputies was empowered to allocate land for the purpose of constructing private houses. As a rule, the person concerned received an abstract of the decision.
  5. There had been no central land register in Azerbaijan at the time of the hostilities. The registration and technical inventory of housing facilities had been carried out by the local administrative authorities under the 1985 Instruction, Articles 2.1 and 2.2 of which had specified which documents constituted primary or secondary evidence of title. The Government maintained that the applicant had not submitted any document which would qualify as primary title of ownership. By way of example the Government mentioned that the decision of the Lachin District Soviet of People’s Deputies of 29 January 1974 submitted by one of the applicants in the case of Chiragov and Others v. Armenia [GC] (dec.), (No. 13216/05, 14 December 2011) constituted such primary evidence.
  6. The Government explained that the technical passport was in the first place an «inventory-technical» document. They acknowledged that a technical passport of a house could constitute secondary evidence, as it was normally issued only to a person having a legal title to property. However, the technical passport submitted by the applicant did not constitute evidence of any property rights, as it was deficient or possibly even a forgery for the following reasons:
  7. The technical passport lacked a reference to a primary title to the house and land: the Government maintained their submission that as a rule the technical passport would refer to a primary title of ownership and contested the applicant’s position that Article 2.3 of the said Instruction was applicable. In any case, the «household lists» mentioned in that provision were not identical with the register of the Village Council.
  8. In their submissions of July 2012, the Government advanced a new argument, namely that the technical passport was incomplete as it contained only an indication of the actual size of the land parcel while the field concerning the size of the land parcel according to official documents was empty.
  9. As a further new argument the Government asserted in their submissions of July 2012 that the technical passport, which was dated 20 May 1991, carried a stamp of the Azerbaijan SSR/Shahumyan district which was no longer in official use at that time, as the State had been renamed to Republic of Azerbaijan in February 1991 and Shahumyan district had been incorporated into Goranboy region at the same time. The Government alleged that after the renaming of the Azerbaijan SSR into the Republic of Azerbaijan the use of old stamps for producing false documents was a frequent occurrence. In addition, they contested the applicant’s assertion that the population of the former Shahumyan district had not been aware of the above-mentioned changes. They pointed out that in the application form the applicant himself referred to the merger of Shahumyan district and a neighbouring district into the new Goranboy district. Finally, the Government pointed out that it was highly unlikely that in May 1991, during a period of rising tension and civil strife the relevant authorities would still have issued technical passports.
  10. In conclusion, the Government asserted that Article 1 of Protocol No. 1 did not apply, as the applicant had failed to submit evidence in respect of his alleged rights.
  11. In case the Court would nonetheless find that the applicant had rights to the house and/or land, the Government submitted that the relevant laws of the Azerbaijan SSR which were still applicable at the time of the hostilities did not provide for private ownership, but allowed citizens to own houses as personal property. Plots of land could be allotted to individuals for their use for an indefinite period of time for purposes such as housing and farming. A person to whom land had been allotted had a right to use it which was protected by law. The 1991 Law on Property and the 1992 Land Code of the Republic of Azerbaijan provided for a possibility to transfer land already allotted to citizens into their private ownership. Detailed rules on the privatization of land plots including individual houses allotted to citizens were introduced later, by the 1996 Law on Land Reform.
  12. The Government had previously submitted that no laws had been adopted in respect of property abandoned by Armenians who left Azerbaijan due to the conflict. In their submissions of September 2013, they modified this statement by submitting that the 1991 Order (see paragraph 83 above) had been introduced to address a practice of property swaps (Armenians leaving Azerbaijan exchanged their property with Azerbaijanis leaving Armenia, Nagorno-Karabakh or the surrounding Armenian-held regions). However, the applicant’s alleged property was not concerned.

(c) The Armenian Government, third-party intervener

  1. The Armenian Government agreed with the arguments submitted by the applicant.

 

  1. The Court’s assessment

 

(a) Applicable principles on assessment of claims relating to property and homes of displaced persons

  1. The Court has previously dealt with cases concerning property and housing rights of persons who have been displaced as a result of an international or internal armed conflict. The issues have arisen in the context of the occupation of northern Cyprus, the actions of the security forces in Turkey and Russia, and in other conflict situations.
  2. The Court examined for the first time the rights of displaced persons to respect for their homes and property in the case of Loizidou v. Turkey ((merits), 18 December 1996, Reports 1996-VI). The applicant claimed to be the owner of a number of plots of land in northern Cyprus. The Turkish Government did not call into question the validity of the applicant’s title, but argued that she had lost ownership of the land by virtue of Article 159 of the 1985 Constitution of the «Turkish Republic of Northern Cyprus» (the «TRNC») which declared all abandoned immovable properties to be the property of the «TRNC». The Court, having regard to the lack of recognition of the «TRNC» as a State by the international community, did not attribute any legal validity to the provision and considered that the applicant could not be deemed to have lost title to her property as a result of it (§§ 42 — 47).
  3. In a number of cases related to the above-mentioned conflict, the Court has established the applicants’ «possession» within the meaning of Article 1 of Protocol No. 1 to the Convention on the basis of prima facie evidence which the Government failed convincingly to rebut, including copies of original title deeds, certificates of registration, purchase contracts and affirmations of ownership issued by the Republic of Cyprus. As explained by the applicant in the case of Solomonides v. Turkey (No. 16161/90, § 31, 20 January 2009), his titles of ownership had been registered at the District Lands Office. However, at the time of the Turkish military intervention he had been forced to flee and had been unable to take with him the title deeds. The authorities of the Republic of Cyprus had reconstructed the Land Books and had issued certificates of affirmation of title. These certificates were the best evidence available in the absence of the original records or documents. It is noteworthy that in Saveriades v. Turkey (No. 16160/90, 22 September 2009) the reasons why the applicant could not submit the original title deeds were specifically taken into account. The applicant argued that he had been forced to leave his premises where the documents were held in great haste and had subsequently been unable to return there or otherwise retrieve the title deeds. The Court accepted that the documents submitted by the applicant (such as a sale contract, ownership certificates and a building permit) provided prima facie evidence that he had a title of ownership over the properties at issue, and continued (§ 18):

«…As the respondent Government failed to produce convincing evidence in rebuttal, and taking into account the circumstances in which the applicant had been compelled to leave northern Cyprus, the Court considers that he had a «possession» within the meaning of Article 1 of Protocol No. 1.»

  1. In the case of and Others v. Turkey (Nos. 8803 — 8811/02, 8813/02 and 8815 — 8819/02, ECHR 2004-VI) which concerned the forced eviction of villagers in the state-of-emergency region in south-east Turkey and the refusal to let them return for several years, the respondent Government raised the objection that some of the applicants had not submitted title deeds attesting that they had owned property in the village in question. The Court considered that it was not necessary to decide whether or not in the absence of title deeds the applicants had rights of property under domestic law. The question was rather whether the overall economic activities carried out by the applicants constituted «possessions» coming within the scope of Article 1 of Protocol No. 1. Answering the question in the affirmative, it stated as follows (§ 139):

«…[T]he Court notes that it is undisputed that the applicants all lived in  village until 1994. Although they did not have registered property, they either had their own houses constructed on the lands of their ascendants or lived in the houses owned by their fathers and cultivated the land belonging to the latter. The Court further notes that the applicants had unchallenged rights over the common lands in the village, such as the pasture, grazing and the forest land, and that they earned their living from stockbreeding and tree-felling. Accordingly, in the Court’s opinion, all these economic resources and the revenue that the applicants derived from them may qualify as «possessions» for the purposes of Article 1.»

  1. The autonomous meaning of the concept of «possessions» has been proclaimed in many judgments and decisions of the Court. In v. Turkey (No. 48939/99, § 124, ECHR 2004-XII), it was summarised thus:

«The Court reiterates that the concept of «possessions» in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to ownership of physical goods and is independent from the formal classification in domestic law: the issue that needs to be examined is whether the circumstances of the case, considered as a whole, may be regarded as having conferred on the applicant title to a substantive interest protected by that provision… Accordingly, as well as physical goods, certain rights and interests constituting assets may also be regarded as «property rights», and thus as «possessions» for the purposes of this provision… The concept of «possessions» is not limited to «existing possessions» but may also cover assets, including claims, in respect of which the applicant can argue that he has at least a reasonable and «legitimate expectation» of obtaining effective enjoyment of a property right…»

In that case, the Court considered that a dwelling illegally erected on public land next to a rubbish tip, where the applicant and his family had lived undisturbed, albeit unauthorised, while paying council tax and public service charges, represented a proprietary interest which, de facto, had been acknowledged by the authorities and which was of a sufficient nature to constitute a possession within the meaning of Article 1 of Protocol No. 1.

  1. The question whether the applicants had substantiated their claim under Article 1 of Protocol No. 1 has arisen also in a number of cases against Russia where the applicants’ houses or other property were destroyed or damaged as a result of aerial attacks on the towns where they lived. For instance, in Kerimova and Others v. Russia (Nos. 17170/04, 20792/04, 22448/04, 23360/04, 5681/05 and 5684/05, § 293, 3 May 2011), the Court accepted the claim of ownership by some of the applicants on the basis of extracts from a housing inventory issued by the town administration after the attack which showed that the applicants were the owners of their houses. As regards the applicants who had submitted no proof of title, the Court established their property right on the basis of other evidence, such as a certificate of residence issued by the town administration. The Court also considered it likely that any documents confirming the applicants’ title to the houses had been destroyed during the attack.
  2. In situations where it has been established that the applicant was the owner of a house, the Court has not required further documentary evidence of his or her residence there to show that the house constituted a «home» within the meaning of Article 8 of the Convention. For example, in Orphanides v. Turkey (No. 36705/97, § 39, 20 January 2009) it stated as follows:

«The Court notes that the Government failed to produce any evidence capable of casting doubt upon the applicant’s statement that, at the time of the Turkish invasion, he was regularly residing in Lapithos and that his house was treated by him and his family as a home.»

  1. However, if an applicant does not produce any evidence of title to property or of residence, his complaints are bound to fail (see, for example, Lordos and Others v. Turkey, No. 15973/90, § 50, 2 November 2010, where the Court declared a complaint incompatible ratione materiae in the absence of evidence of ownership; see also the conclusion as to some applicants in the above-mentioned case of Kerimova and Others). In several cases the Court has reiterated that the applicants are required to provide sufficient prima facie evidence in support of their complaints. In Damayev v. Russia (No. 36150/04, § 108 — 111, 29 May 2012) it considered that an applicant complaining about the destruction of his home should provide at least a brief description of the property in question. Since no documents or detailed claims were submitted, his complaint was found to be unsubstantiated. As further examples of prima facie evidence of ownership of or residence on property, the Court has mentioned documents such as land or property titles, extracts from land or tax registers, documents from the local administration, plans, photographs and maintenance receipts as well as proof of mail deliveries, statements of witnesses or any other relevant evidence (see, for instance, Prokopovich v. Russia, No. 58255/00, § 37, ECHR 2004-XI, and Elsanova v. Russia (dec.), No. 57952/00, 15 November 2005).
  2. In sum, the Court’s case-law has developped a flexible approach regarding the evidence to be provided by applicants who claim to have lost their property and home in situations of international or internal armed conflict. The Court notes that a similar approach is reflected in Article 15 § 7 of the UN «Principles on Housing and Property Restitution for Refugees and Displaced Persons» (see paragraph 96 above).

(b) Application of the above principles to the present case

(i) Proof of possessions

  1. The Court will first address the Government’s argument that the applicant’s complaint only related to the house which appeared to have been destroyed before the entry into force of the Convention. The Court has already noted in the decision on the admissibility of the present case that the applicant referred from the beginning also to the plot of land on which the house was situated (Sargsyan (dec.), cited above, § 88). It therefore understands the applicant’s complaint as encompassing both, the house and the land.
  2. The parties’ submissions focused on two issues: firstly, the probative value of the «technical passport» submitted by the applicant and, secondly, the question whether the Village Council, from which the applicant claimed to have obtained the land and permission to build a house in the early 1960s, had at that time been competent to allocate land.
  3. In respect of the second issue, the Court notes that the Government relied on the general administrative structure of the Azerbaijan SSR when arguing that the Village Council was not empowered to allocate land. The applicant, for his part, referred to specific provisions of the 1958 Charter on Village Councils (see paragraph 82 above), which appear to support his position that the Village Council could allocate land for the purpose of private construction. However, it will not be necessary for the Court to decide on this issue for the following reasons.
  4. It is not contested that a technical passport was, as a rule, only issued to the person entitled to the house. In the present case, the applicant has submitted a technical passport established in his name and relating to a house and land of some 2,100 sq. m in Gulistan, including a detailed plan of the house. In the Court’s view the technical passport constitutes prima facie evidence. Provided that the technical passport can be regarded as a valid document, the Court considers that it is not required to examine the details of the parties’ submissions on the relevant domestic law of the Azerbaijan SSR in respect of allocation of land in the early 1960s. The Court will therefore first examine the validity of the technical passport submitted by the applicant. The Court observes that both parties agreed that the registration of houses had been regulated by the 1985 Instruction (see paragraph 81 above). The Court will address in turn each of the reasons adduced by the Government for finding that the technical passport was deficient or a forgery.
  5. In so far, as the Government claim that the technical passport did not contain a reference to a primary title of ownership, the Court notes that the parties disagreed as to which provisions of the 1985 Instruction applied in the applicant’s case. The Court is not in a position to establish the correct interpretation of the law in force in Azerbaijan in May 1991 when the technical passport was established. It notes that the applicant has at least given a plausible explanation why such a reference was not needed in his case. It is also correct, as the applicant pointed out, that the form which was used does not foresee such a reference. Finally, the applicant has submitted copies of technical passports of houses owned by other former villagers from Gulistan, which contain no such reference either.
  6. Furthermore, the Government had argued that the field «land parcel size according to official documents» in the technical passport submitted by the applicant was empty. Again, the applicant has given detailed information on how the technical passport was established by officials of the regional Bureau of Technical Inventory and has submitted the copies of technical passports of houses owned by other former villagers from Gulistan, in which this field is also empty.
  7. Finally, the Court turns to the Government’s assertion that the technical passport carried a wrong stamp. It considers, however, that given the background which pertained in 1991, namely a situation of general civil unrest and the blockade of Shahumyan region, to which the applicant, members of his family and former villagers referred to already in their statements submitted in 2010, long before the Government raised the issue of wrong stamps, the applicant’s explanation that the population as well as officials in the region had not been informed by the authorities of the change of name is not without a certain plausibility. Be that as it may, the Court attaches weight to the argument that the Government have not claimed let alone shown that new stamps had actually been provided to the relevant local authorities of the (former) Shahumyan region before May 1991, when the technical passport of the applicant’s house was established.
  8. In sum, the Court accepts that the technical passport submitted by the applicant constitutes prima facie evidence of title to the house and land, which is similar to evidence it has accepted in many previous cases (see paragraphs 178 — 183 above) and has not been convincingly rebutted by the Government.
  9. Furthermore, the Court takes into account that from the beginning the applicant had made coherent submissions, claiming that he had lived in Gulistan until his flight in June 1992 and that he had a house and land there. He submitted a copy of his former Soviet passport and of his marriage certificate, which show that he was born in Gulistan in 1929 and got married there in 1955. The applicant’s submissions as to how he obtained the land and the permission to build a house and then did so in the early 1960s with the help of neighbours and friends are supported by statements of a number of family members and former villagers. While the Court takes into account that these are written statements, which have not been tested in cross-examination, it notes that they are rich in detail and tend to demonstrate that the persons concerned have actually lived through the events described by them. Given the long lapse of time since the villagers’ displacement, the Court does not attach decisive importance to the fact that these statements do not corroborate each other in all details as pointed out by the Government.
  10. Last but not least the Court has regard to the circumstances in which the applicant was compelled to leave when the village came under military attack. It is hardly astonishing that he was unable to take complete documentation with him. Accordingly, taking into account the totality of evidence presented, the Court finds that the applicant has sufficiently substantiated his claim that he had a house and land in Gulistan at the time of his flight in June 1992.
  11. Finally, the Court turns to the Government’s argument that the house appeared to have been destroyed before the entry into force of the Convention on 15 April 2002 and that consequently the complaint, in so far as it related to the house, fell outside the Court’s competence ratione temporis. In the admissibility decision in the present case, the Court had noted that it was not clear whether the applicant’s house had been destroyed. It went on to say that at that stage it was only concerned with examining whether the facts of the case were capable of falling within its jurisdiction ratione temporis, while a detailed examination of the facts and legal issues of the case had to be reserved to the merits stage (Sargsyan (dec.), cited above, § 88) Having regard to its case-law, the Court considered that the applicant’s lack of access to his alleged property, home and the graves of his relatives in Gulistan had to be considered as a continuing situation which the Court had competence to examine since 15 April 2002. It had therefore rejected the Government’s objection ratione temporis (ibid., §§ 91 — 92). However, as the Court reserved a detailed examination of the facts to the merits stage, it still has to determine whether or not the house has been destroyed prior to the entry into force of the Convention and, consequently, whether there is a factual basis for the Government’s objection ratione temporis in respect of the house. Should the house have been destroyed before the entry into force of the Convention, this would indeed constitute an instantaneous act falling outside the Court’s competence ratione temporis (see, Moldovan and Others and and Others v. Romania (dec.), Nos. 41138/98 and 64320/01, 13 March 2001).
  12. The Court notes that the applicant’s submissions in his application as to whether the house had been destroyed or not were contradictory (Sargsyan (dec), cited above, § 24). In reply to the Court’s request to explain this apparent contradiction, the applicant asserted that there had been some confusion between his house and his parent’s house which had arisen when his representative drafted the application on the basis of his written statement of 10 July 2006 in which he had used the phrase «My mother stayed in the village of Gulistan and our house was destroyed.» The Court notes firstly that the said statement was submitted with the application. It accepts that the specific context in which the expression «our house» was used leaves room for different interpretations and that the relevant passage in the application form referring to the destruction of the applicant’s house might be the result of a misunderstanding.
  13. Having regard to the evidence before the Court, in particular the DVDs submitted by both parties and the third party Government, other relevant evidence submitted by the parties and the AAAS report, the Court observes that Gulistan has been deserted since mid-1992 and most buildings in the village are dilapidated, meaning that the outer and inner walls are still standing while roofs have fallen in. In the absence of conclusive evidence that the applicant’s house was completely destroyed before the entry into force of the Convention, the Court proceeds from the assumption that it still exists though in a badly damaged state. In conclusion, there is no factual basis for the Government’s objection ratione temporis.
  14. In conclusion, the Court finds that the applicant had and still has a house and a plot of land in Gulistan and dismisses the Government’s objection that it lacks competence ratione temporis to examine the complaint in respect of the house.

(ii) Whether the applicant’s rights fall under Article 1 of Protocol No. 1

  1. The Court will examine next whether the applicant had — and still has — rights to property recognized under domestic law and whether these rights can be regarded as «possessions» within the meaning of Article 1 of Protocol No. 1.
  2. The Government explained that under the relevant laws of the Azerbaijan SSR, which were in force at the time of the applicant’s displacement, citizens could not have private ownership of houses or land. They could, however, have personal property of a house. Moreover, land could be allotted to citizens for an indefinite period of time for purposes such as farming or housing. While the 1991 Law on Property and the 1992 Land Code provided — for the first time — for a possibility to transfer land already allotted to citizens into their private ownership, detailed rules on the privatization of land including individual houses allotted to citizens were only introduced by the 1996 Law on Land Reform.
  3. The Court therefore notes, firstly, that when the applicant left Gulistan in June 1992, the relevant rules allowing individuals to transform the rights they previously held in respect of land including individual houses had not yet been adopted. It has not been claimed that the applicant has subsequently made use of this possibility. As the rights acquired by him under the old legislation were not rescinded by the enactment of the 1991 Law on Property and the 1992 Land Code, the right to the house and land that he possessed at the time of his flight must be assessed with reference to the laws of the Azerbaijan SSR.
  4. The Court observes that according to these laws, in particular pursuant to Article 13 of the 1978 Constitution and Article 10.3 of the 1983 Housing Code, citizens could have personal property of residential houses. Personal property and the right to inherit it were protected by the State. In contrast, all land was owned by the State. Plots of land could be allocated to citizens for specific purposes such as farming or construction of individual housing. In that case the citizen had a «right of use» in respect of the land. This follows again from Article 13 of the 1978 Constitution and from Article 4 of the Land Code. The «right to use», though it obliged the beneficiary to use the land for the purposes for which it had been allocated, was protected by law. This is not contested by the Government. Moreover, the right was inheritable.
  5. There is no doubt therefore, that the rights conferred on the applicant in respect of the house and land were protected rights which represented a substantive economic interest. Having regard to the autonomous meaning of Article 1 of Protocol No. 1, the applicant’s right to personal property of the house and his «right of use» in respect of the land constituted «possessions» under that provision.
  6. The Government submitted that no laws had been enacted in respect of property abandoned by Armenians who left Azerbaijan due to the conflict. They referred to one exception, namely the 1991 Order (see paragraph 83 above) explaining that the said order addressed the practice of property swaps between Armenians leaving Azerbaijan and Azerbaijanis leaving Armenia, or Nagorno-Karabakh and the surrounding provinces. However, they noted that the applicant’s property was not concerned.

205. In conclusion, at the time of his displacement from Gulistan, in June 1992, the applicant had rights to a house and land which constituted possessions within the meaning of Article 1 of Protocol No. 1. There is no indication that those rights have been extinguished afterwards whether before or after the ratification of the Convention by Azerbaijan. The applicant’s property rights are thus still valid. Since the applicant accordingly has existing possessions, there is no need to examine whether he also had a «legitimate expectation» to transform his rights into private property as provided for by the 1991 Law on Property.

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