- Whether there has been a continuing violation of Article 1 of Protocol No. 1
- The parties’ submissions
(a) The applicant
- The applicant maintained 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 (see Sargsyan (dec.), cited above, § 149). Relying on the Court’s case-law relating to northern Cyprus, he argued that he was still the legal owner of his property in Gulistan, but was unable either to return or to receive any compensation for the interference with his rights.
- The applicant asserted that since the entry into force of the Convention in 2002 the respondent Government had failed to take any specific steps with a view to restoring the rights of refugees like him, in particular to secure his right to return to his house and land or to be compensated. He observed that the right of refugees and displaced persons to return voluntarily or to be compensated has been constantly advocated in international documents, including the 2007 Madrid Basic Principles elaborated in the framework of the OSCE Minsk process (see paragraph 26 above), UN Security Council Resolutions, recommendations of the Parliamentary Assembly of the Council of Europe and the European Parliament.
- Regarding the nature and extent of the Government’s obligations, the applicant suggested that the Court take relevant international standards into account, in particular the United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons, also known as the Pinheiro Principles (see paragraph 96 above). In the applicant’s view, a range of measures would be available to the Government. Such measures could include creating a property records body and a process allowing refugees and displaced persons to re-establish legal title to pre-war property and file a claim for its repossession. A further step could be the creation of a zone of separation with an agreement to withdraw opposing armies from the ceasefire-line followed by the establishment of a demilitarized zone under the authority of an international peace keeping force. This zone could then become the first location where returns can take place. The applicant asserted that the Government had not even claimed that they sought to take any such steps.
(b) The respondent Government
- The respondent Government’s main argument prior to the decision on admissibility had been that they did not have effective control over Gulistan and were thus not in a position to grant the applicant access to his possessions and, consequently, could not be held responsible for the alleged continuing violation (see Sargsyan (dec.), cited above, § 155).
- In the subsequent proceedings, the Government – in line with their position that they had only limited responsibility under the Convention in respect of Gulistan as they did not have sufficient control of the area – submitted in the first place that they had fulfilled their remaining positive obligations under Article 1 of the Convention, both in terms of general measures and in terms of individual measures. The Government pointed out that they consistently opposed the unlawful occupation of Nagorno-Karabakh and the surrounding provinces by Armenian forces. In parallel, they had sought to re-establish control over the territory by all available diplomatic means, in particular by participating in the peace talks in the framework of the OSCE Minsk Group. Regular meetings were held by the co-chairs of that group with the Foreign Ministers and the Presidents of Armenia and Azerbaijan. In so far as individual measures were required to address the situation of refugees and internally displaced persons, the Government referred to the 1991 Order (see paragraph 83 above) which legalized private property swaps between Azeris fleeing from Armenia, Nagorno-Karabakh and the surrounding provinces and Armenians fleeing from Azerbaijan. This was a step taken in order to address the wholly exceptional emergency situation created by massive flows of refugees and internally displaced persons. However, to the Government’s knowledge, the applicant had not been engaged in such an exchange.
- In the alternative, should the Court hold that the Government had full responsibility under the Convention, they accepted that refusing the applicant access to Gulistan could be seen as an interference with his rights under Article 1 of Protocol No. 1 of the Convention.
- They asserted that the refusal to grant any civilian of whatever nationality access to Gulistan was justified by the security situation in the area. Any interference with the applicant’s rights was lawful and served the general interest. In that connection the Government noted that the armed forces of Azerbaijan, whose status was regulated by the 1993 Law on Armed Forces of the Republic of Azerbaijan, were responsible for defending the borders of Azerbaijan and for securing the safety of its inhabitants. Access to Gulistan, which was situated within an area of military operations, was prohibited by an Order of the Minister of Defence, which they could not disclose as it was strictly confidential. The legal basis empowering the Minister of Defence to issue such orders was to be found in Article 7 paragraph 2(11) of the Law on Defence of the Republic of Azerbaijan. In fulfilling their mission outlined above, the armed forces of Azerbaijan had to comply with the Convention and with international humanitarian law. They were thus responsible for minimizing possible harm to civilians by preventing them from entering areas of danger. In fact, allowing civilians to enter the village might be regarded as a violation of Azerbaijan’s obligation to protect the right to life under Article 2 of the Convention. It was obvious that Gulistan was a dangerous area, given the presence of landmines and the risk of hostile action.
- Furthermore, the Government referred to the case of and Others (cited above) noting that, in cases of this type, the Court had concentrated on issues of proportionality of the interference. They argued that the present case differed from and Others, in which the Court had found violations of Article 1 of Protocol No. 1 and Article 8 of the Convention. They pointed out in essence that the applicant in the present case was not an internally displaced person. He was living in Armenia and thus came within the latter’s jurisdiction. The respondent Government had made considerable efforts to cater for the needs of hundreds of thousands of internally displaced persons providing them in particular with housing and a range of social services. However given that the applicant lived in Armenia they were not in a position to provide him with any practical help.
(c) The Armenian Government, third-party intervener
- The intervening Government agreed with the arguments submitted by the applicant.
- The Court’s assessment
- The Court considers it useful to make a number of introductory remarks. As set out in the admissibility decision in the present case (Sargsyan (dec.), cited above, §§ 89 – 91) and in the considerations above, the acceptance of the Court’s competence ratione temporis is based on the finding that the applicant still holds valid property rights in respect of the house and land in Gulistan (see paragraph 205 above). In contrast, the applicant’s displacement from Gulistan in June 1992 falls outside the Court’s competence ratione temporis (Sargsyan (dec.), cited above, § 91). Consequently, what has to be examined in the present case is whether the respondent Government have violated the applicant’s rights in the ensuing situation, which is a direct result of the unresolved conflict over Nagorno-Karabakh between Armenia and Azerbaijan.
- In that connection, the Court observes that the applicant is one of hundreds of thousands of Armenians who fled from Azerbaijan during the conflict leaving property and home behind. Currently, more than one thousand individual applications lodged by persons who were displaced during the conflict are pending before the Court, slightly more than half of them being directed against Armenia and the remainder against Azerbaijan. While the issues raised fall within the Court’s jurisdiction as defined in Article 32 of the Convention, it is the responsibility of the two States involved in the conflict to find a political settlement of the conflict (see, mutatis mutandis, and Others v. Slovenia, Nos. 44574/98, 45133/98 and 48316/00, §§ 255 – 256, 3 October 2008; Demopoulos and Others (cited above, § 85)). Comprehensive solutions to such questions as the return of refugees to their former places of residence, re-possession of their property and/or payment of compensation can only be achieved through a peace agreement. Indeed, prior to their accession to the Council of Europe, Armenia and Azerbaijan gave undertakings to resolve the Nagorno-Karabakh conflict through peaceful means (see paragraph 76 above). Although negotiations have been conducted in the framework of the OSCE Minsk Group, more than twenty years have gone by since the ceasefire agreement in May 1994 and more than twelve years since the accession of Azerbaijan and Armenia to the Convention on 15 and 26 April 2002, respectively, without a political solution being yet in sight. As recently as June 2013 the Presidents of the Co-Chair countries of the Minsk Group – France, the Russian Federation and the United States of America – have expressed their “deep regret that, rather than trying to find a solution based upon mutual interests, the parties have continued to seek one-sided advantage in the negotiation process” (see paragraph 28 above). The Court cannot but note that compliance with the above accession commitment is still outstanding.
(a) Applicable rule of Article 1 of Protocol No. 1
- The Court reiterates that Article 1 of Protocol No. 1 comprises three distinct rules. The first rule, which is set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property. The second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions. The third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose. However, the rules are not “distinct” in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see among many other authorities, Broniowski v. Poland [GC], No. 31443/96, § 134, ECHR 2004-V).
- The Court notes that the parties did not comment on the rule applicable to the case. It reiterates its finding that the applicant was not deprived of his rights in respect of the house and land in Gulistan. It follows that the case does not involve a deprivation of property within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1. Nor has it been claimed that the situation complained of was the result of any measures aimed at the control of the use of property. The Court therefore considers that the situation of which the applicant complains falls to be examined under the first sentence of the first paragraph, as it concerns a restriction of the applicant’s right to the peaceful enjoyment of his possessions (see, Loizidou (merits), cited above, § 63; Cyprus v. Turkey [GC], No. 25781/94, § 187, ECHR 2001-IV; and Others, cited above, § 146).
(b) Nature of the alleged violation
- The essential object of Article 1 of Protocol No. 1 is to protect a person against unjustified interference by the State with the peaceful enjoyment of his or her possessions. However, by virtue of Article 1 of the Convention, each Contracting Party “shall secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention.” The discharge of this general duty may entail positive obligations inherent in ensuring the effective exercise of the rights guaranteed by the Convention. In the context of Article 1 of Protocol No. 1, those positive obligations may require the State to take the measures necessary to protect the right of property (see Broniowski, cited above, § 143; Sovtransavto Holding v. Ukraine, No. 48553/99, § 96, ECHR 2002-VII).
- However, the boundaries of the State’s positive and negative obligations under Article 1 of Protocol No. 1 do not lend themselves to precise definition. The applicable principles are nonetheless similar. Whether a case is analysed in terms of a positive duty of the State or in terms of interference by a public authority which needs to be justified, the criteria to be applied do not differ in substance. In both contexts regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole. It also holds true that the aims mentioned in that provision may be of some relevance in assessing whether a balance between the demands of the public interest involved and the applicant’s fundamental right of property has been struck. In both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (Broniowski, cited above, § 144).
- The Court notes that the applicant complains that he is prevented from having access to his possessions in Gulistan and that the respondent Government have failed to provide him with any compensation for the interference with his rights. The applicant has thus formulated his complaint in terms of interference. Likewise, the Government, in case the Court should dismiss their argument that they have only limited responsibility under Article 1 of the Convention, addressed the applicant’s complaints as being directed against an interference with his property rights.
- In a number of comparable cases the Court has examined complaints of refugees or displaced persons about lack of access to and enjoyment of possessions as an interference with their rights under Article 1 of Protocol No. 1 (see, for instance, Loizidou (merits), cited above, § 63; Cyprus v. Turkey, cited above, § 187; and Others, cited above, § 143). In the present case, the Court does not consider it appropriate to follow this approach for the following reasons.
- The present case differs from the cases concerning northern Cyprus in which the Turkish Government was held responsible for refusing Greek-Cypriot owners access to their properties situated in the “TRNC” which were under the Turkish Government’s effective control as a result of occupation and establishment of a subordinate local administration. In those cases the interference with the Greek-Cypriot owners’ property rights was closely linked with the fact of occupation and establishment of the “TRNC” (Loizidou, cited above, §§ 52 – 56 and 63; Cyprus v. Turkey, cited above, §§ 75 – 80 and § 187). In contrast, what is at stake in the present case are acts or omissions of the respondent Government within its own internationally recognised territory.
- The present case is the first case in which the Court has to rule on the merits of a complaint against a State, which has lost control over part of its territory as a result of war and occupation, but in respect of the area remaining under its control is claimed to be responsible for refusing a displaced person access to property. The only cases which would be comparable to the present case are a number of applications against the Republic of Cyprus lodged by Turkish-Cypriots also raising complaints about lack of access to property and home situated in the areas remaining under the Cypriot Government’s control. However, these have not reached the stage of examination of the merits as they were either settled (Sofi v. Cyprus (dec.), No. 18163/04, 14 January 2010) or dismissed for failure to exhaust remedies provided by the Republic of Cyprus in respect of abandoned properties (see, in particular, Niazi Kazali and Hakan Kazali (dec.), cited above, §§ 152 – 153).
- In the case of and Others (cited above), villagers who had been evicted from their village in the state-of-emergency region of south-east Turkey in the context of violent confrontations between the security forces and members of the PKK (Worker’s party of Kurdistan), were prevented by the authorities from returning for about nine years on the ground of terrorist incidents in and around the village (ibid., §§ 142 – 143). It is worth noting that, though analysing the villagers’ complaint about the refusal of access to their property in the village in terms of interference, the Court eventually left open the questions whether the interference with their right to peaceful enjoyment of possessions was lawful and pursued a legitimate aim and concentrated its examination on the issue of proportionality (ibid., §§ 147 – 149).
- Having regard to the circumstances of the present case, the Court considers it appropriate to examine the applicant’s complaint with a view to establishing whether the respondent Government have complied with their positive obligations under Article 1 of Protocol No. 1. It will therefore concentrate its examination on the question whether a fair balance between the demands of the public interest and the applicant’s fundamental right of property has been struck.
(c) Whether a fair balance has been struck between the demands of the public interest and the applicant’s right to the peaceful enjoyment of his possessions
- Transposing the principles developed in its case-law to the specific circumstances of the present case, the Court considers that both an interference with the peaceful enjoyment of the applicant’s possessions and abstention from action must strike a fair balance between the safety considerations relied on by the Government and the requirements of the protection of the applicant’s fundamental rights. The Court reiterates that the concern to achieve this balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measures applied by the State, including measures depriving a persons of his or her possessions. In each case involving the alleged violation of that Article the Court must, therefore, ascertain whether by reason of the State’s action or inaction the person concerned had to bear a disproportionate and excessive burden (Broniowski, cited above, § 150 with further references). In assessing compliance with Article 1 of Protocol No. 1 the Court must make an overall examination of the various interests in issue, bearing in mind that the Convention is intended to safeguard rights that are “practical and effective”. It must look behind appearances and investigate the realities of the situation complained of (ibid., § 151).
- The Court considers that the applicant’s complaint raises two issues, firstly whether the respondent Government are under an obligation to grant him access to his house and land in Gulistan, and secondly whether they are under a duty to take any other measures to protect the applicant’s property right and/or to compensate him for the loss of its use.
- Regarding the question of access to the applicant’s property in Gulistan, the Court observes that the general situation of unresolved conflict between Armenia and Azerbaijan may make travel to Azerbaijan let alone access to their property very difficult, if not impossible, for persons in the applicant’s situation. However, the parties’ argument concentrated on the specific situation in Gulistan. The Court will also concentrate its examination on this point.
- The Government argued in particular that the refusal to grant any civilian access to Gulistan was justified by the security situation pertaining in and around the village. While referring briefly to their obligations under international humanitarian law, the Government relied mainly on interests of defence and national security and on their obligation under Article 2 of the Convention to protect life against dangers emanating from landmines or military activity.
- The Government have not submitted any detailed argument in respect of their claim that their refusal to grant civilians access to Gulistan was grounded in international humanitarian law. The Court observes that international humanitarian law contains rules on forced displacement in occupied territory but does not explicitly address the question of displaced persons’ access to home or other property. Article 49 of the Fourth Geneva Convention (see paragraph 95 above) prohibits individual or mass forcible transfers or deportations in or from occupied territory, allowing for the evacuation of a given area only if the security of the population or imperative military reasons so require; in that case, displaced persons have a right to return as soon as hostilities in the area have ceased. However, these rules are not applicable in the present context as they only apply in occupied territory, while Gulistan is situated on the respondent Government’s own internationally recognised territory.
- What is rather of relevance in the present case, is the right of displaced persons to return voluntarily and in safety to their homes or places of habitual residence as soon as the reasons for their displacement cease to exist, which is regarded as a rule of customary international humanitarian law applying to all territory whether “occupied” or “own” (Rule 132 of the ICRC Study on Customary International Humanitarian Law – see paragraph 95 above). However, it may be open to debate whether the reasons for the applicant’s displacement have ceased to exist. In sum, the Court observes that international humanitarian law does not appear to provide a conclusive answer to the question whether the Government are justified in refusing the applicant access to Gulistan.
- On the basis of the evidence before it the Court has established that Gulistan is situated in an area of military activity. At least the area around it is mined and ceasefire violations occur frequently. It has not been claimed and there is no indication that this situation changed in any significant way in the period from the entry into force of the Convention until the present day. In any case, there are no signs that the situation has improved. The evidence before the Court rather points to an increase of military activity and of ceasefire violations in the area. The Court accepts that refusing civilians, including the applicant, access to Gulistan is justified by safety considerations, in particular restricting access to a mined area and protecting civilians against the dangers existing in such an area (see, mutatis mutandis, Oruk v. Turkey, No. 33647/04, §§ 58 – 67, 4 February 2014 relating to the State’s obligation under Article 2 of the Convention to take appropriate measures to protect civilians living near a military firing zone against dangers emanating from unexploded ammunition). It would be unrealistic at present to expect the Azerbaijani Government to ensure the applicant’s access to or re-possession of his property in Gulistan irrespective of the fact that it is in a militarily sensitive zone (see, mutatis mutandis, Demopoulos and Others (dec.), cited above, § 112).
- However, the Court considers that as long as access to the property is not possible, the State has a duty to take alternative measures in order to secure property rights. The Court refers in that respect to the case of and Others concerning internal displacement of villagers, in which it examined in detail the measures taken by the Turkish Government with a view to either facilitating return to villages or to providing IDPs with alternative housing or other forms of assistance (cited above, §§ 153 – 156). The Court would underline that the obligation to take alternative measures does not depend on whether or not the State can be held responsible for the displacement itself. In and Others the Court noted that it was unable to determine the exact cause of the displacement of the applicants and therefore had to confine its consideration to the examination of their complaints concerning the denial of access to their possessions (ibid., § 143). Which measures need to be taken depends on the circumstances of the case.
- The Court will examine whether the Government have taken measures for the protection of the applicant’s property rights. The Government asserted in particular that they have been participating in peace talks. Moreover, they pointed out that they had to cater for the needs of a huge number of IDPs. As the applicant was no longer present in Azerbaijan they could not provide any assistance to him. For his part, the applicant alleged that the Government had not taken any steps which they should have taken to protect or restore his property rights, had they acted in conformity which international standards regarding the restitution of housing and property to internally displaced persons and refugees.
- In so far as the Government asserted that they are participating in peace talks, the Court observes that the right of all internally displaced persons and refugees to return to their former places of residence is one of the elements contained in the 2007 Madrid Basic Principles which have been elaborated in the framework of the OSCE Minsk Group (see paragraph 26 above) and form the basis of the peace negotiations. The question therefore arises whether it is sufficient for the Government to participate in these negotiations in order to fulfil their duty to strike a fair balance between the competing public and individual interests. While the Court can only underline the importance of these negotiations, it has already observed that they have been ongoing for over twenty years since the ceasefire in May 1994 and for more than twelve years since the entry into force of the Convention in respect of Azerbaijan and have not yet yielded any tangible results.
- The Court considers that the mere fact that peace negotiations are on-going does not absolve the Government from taking other measures, especially when negotiations have been pending for such a long time (see, mutatis mutandis, Loizidou, cited above, § 64; Cyprus v. Turkey, cited above, § 188). In that connection the Court refers to Resolution 1708 (2010) on “Solving property issues of refugees and displaced persons” of the Parliamentary Assembly of the Council of Europe which, relying on relevant international standards, calls on member states to “guarantee timely and effective redress for the loss of access and rights to housing, land and property abandoned by refugees and IDPs without regard to pending negotiations concerning the resolution of armed conflicts of the status of a particular territory” (see paragraph 98 above).
- Guidance as to which measures the respondent Government could and should take in order to protect the applicant’s property rights can be derived from relevant international standards, in particular from the UN Pinheiro principles (see paragraph 96 above) and the above-mentioned Resolution of the Parliamentary Assembly of the Council of Europe. At the present stage, and pending a comprehensive peace agreement, it would appear particularly important to establish a property claims mechanism, which should be easily accessible and provide procedures operating with flexible evidentiary standards, allowing the applicant and others in his situation to have their property rights restored and to obtain compensation for the loss of their enjoyment.
- The Court is fully aware that the respondent Government has had to provide assistance to hundreds of thousands of internally displaced persons, namely those Azeris who had to flee from Armenia, from Nagorno-Karabakh and the seven occupied surrounding districts. In fact, the Government have pointed out that they have made considerable efforts in order to provide internally displaced persons with housing and other means of support. The only measure indicated by the Government from which Armenian refugees could potentially benefit is the 1991 Order legalising property swaps between individuals. Even assuming that such property swaps would be acceptable under the Convention, the Court notes that the applicant has not been involved in such an exchange.
- The Court considers that, while the need to provide for a large community of internally displaced persons is an important factor to be weighed in the balance, the protection of this group does not exempt the Government entirely from its obligations towards another group, namely Armenians like the applicant who had to flee during the conflict. In this connection, the Court refers to the principle of non-discrimination laid down in Article 3 of the above-mentioned Pinheiro principles. Finally, the Court observes that the situation has continued to exist over a very lengthy period.
- In conclusion, the Court considers that the impossibility for the applicant to have access to his property in Gulistan without the Government taking any alternative measures in order to restore his property rights or to provide him with compensation for his loss of their enjoyment, placed and continues to place an excessive burden on him.
- Consequently, there has been a continuing breach of the applicant’s rights under Article 1 of Protocol No. 1.
- Alleged violation of Article 8 of the Convention
- The applicant complained that the denial of his right to return to the village of Gulistan and to have access to his home and to the graves of his relatives constitutes a continuing violation of Article 8 of the Convention reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
- The parties’ submissions
- The applicant
- The applicant maintained that he was born and grew up in Gulistan and lived there in his house with his family from the early 1960s until June 1992. He referred to the evidence submitted in support of his complaint under Article 1 of Protocol No. 1. In addition, he referred to the copy of his former Soviet passport, which confirmed that he was born in Gulistan in 1929 and to his marriage certificate which showed that he had got married in Gulistan in 1955, underlining that he had submitted both documents already when he had lodged the application. Furthermore, he stated that he was no longer able to submit a complete copy of his former Soviet passport (including the page with the registration stamp showing that he lived in Gulistan) as that passport had been destroyed in 2002 when he had obtained an Armenian passport.
- The applicant argued that the applicability of Article 8 depended on the existence of “sufficient and continuous links with a specific place” or “concrete and persisting links with the property concerned”, criteria which he fulfilled in respect of his home in Gulistan. As followed from the Court’s case-law relating to northern Cyprus, these links were not broken by his prolonged involuntary absence. He added that this assessment and thus the applicability of Article 8 were independent from the question of ownership of the “home” at issue. In respect of his relatives’ graves he argued that the denial of access to them violated his right to respect for “private and family life” as guaranteed by Article 8. He asserted that apart from the fact that he was unable to visit the graves of his relatives, he suffered in particular from the insecurity as to their fate.
- In sum, the applicant argued that the refusal of access to his home, or to award him compensation, and the denial of access to the graves of his relatives and the ensuing uncertainty about their fate constituted continuing violations of Article 8 of the Convention.
- The respondent Government
- The respondent Government asserted that the applicant had not submitted sufficient evidence to show that he actually lived in Gulistan or had a home there. They explained that under the Soviet system of residence registration (propiska system) which required everyone to be registered at his or her place of living, registration was recorded in the citizen’s internal passport by a registration stamp and in the archives of the local authorities. In the present case, the relevant archives had been destroyed during the hostilities and the copy of those pages of the applicant’s former Soviet passport which he had submitted did not bear a registration stamp.
- Regarding the applicability of Article 8 the Government accepted that access to a home or to the graves of relatives fell within the notions of “home” and “private life” and thus within the scope of Article 8. However, referring to Demopoulos and Others ((dec.), cited above, § 136), they asserted that Article 8 did not apply where there was no longer a “persisting link” with the property concerned. The Government maintained the view that, even assuming that the applicant had lived in Gulistan and had had a house there, that house had been destroyed during the hostilities in 1992. Consequently, the applicant could no longer claim to have such a persisting link with a “home” in Gulistan.
- In so far as the applicant’s complaint related to the graves of his relatives the Government observed, firstly, that he had complained about the alleged destruction of Armenian graves in Azerbaijan but had not submitted sufficient evidence to show that there were graves of his relatives in Gulistan and that these graves had been destroyed. Consequently, he could not claim to be a victim of the alleged violation of Article 8 of the Convention. If such graves had actually existed, they had most likely been destroyed during the hostilities, i.e. before the entry into force of the Convention, and this part of the complaint was therefore incompatible ratione temporis.
- Should the Court nonetheless come to the conclusion that Article 8 applied, as the applicant had a home and graves of his relatives in Gulistan, the Government argued that they could not be held responsible for any alleged interference with his rights. Given the security situation in the area they were simply not in a position to grant the applicant, or any civilian, access to Gulistan.
- The Armenian Government, third-party intervener
- The intervening Government agreed with the arguments submitted by the applicant. They underlined that it was undisputed that the applicant had no access to his home in Gulistan and to the graves of his relatives. Seen against the background of massive destruction of Armenian graveyards (for instance the destruction of the ancient Armenian graveyard of Jugha in the Nakhichevan region of Azerbaijan) which had been condemned by the international community, the applicant lived in a state of insecurity and anxiety as regards his relatives’ graves.
- The Court’s assessment
- Whether Article 8 of the Convention applies
- The Court notes that the applicant’s complaint encompasses two aspects: lack of access to his home in Gulistan and lack of access to the graves of his relatives. The Government contested the applicant’s victim status in so far as his complaint concerned the graves of his relatives. In its admissibility decision the Court had joined the Government’s objection concerning the applicant’s victim status to the merits (Sargsyan (dec.), cited above, § 99).
- The Court reiterates its established case-law, according to which “home” is an autonomous concept which does not depend on the classification under domestic law. Whether or not a particular habitation constitutes a “home” which attracts the protection of Article 8 § 1 will depend on the factual circumstances, namely the existence of sufficient and continuous links with a specific place (see, for instance, Prokopovich, cited above, § 36; Gillow v. the United Kingdom, 24 November 1986, § 46, Series A No. 109).
- In comparable cases the Court has considered that the lengthy involuntary absence was not capable of breaking the link with a displaced person’s home (see, Cyprus v. Turkey, cited above, §§ 173 – 175; and Others, cited above, §§ 159 – 160). However, the Court’s case-law requires that a sufficiently strong link has existed in the first place: For instance, in Loizidou (cited above, § 66) the Court did not accept that a property on which the applicant had planned to build a house for residential purposes constituted a “home” within the meaning of Article 8 of the Convention. In Demopoulos and Others ((dec.), cited above, §§ 136 – 137) the Court did not accept that the then family home of a Greek-Cypriot family could also be regarded as “home” in respect of one applicant, the daughter, who was still very young when the family had to leave.
- Furthermore, the Court reiterates that the concept of “private life” is a broad term not susceptible to exhaustive definition. Among other things, it includes the right to establish and develop relationships with other human beings and the outside world (see, for instance, Pretty v. the United Kingdom, No. 2346/02, § 61, ECHR 2002-III). While it has been said that the exercise of Article 8 rights, including private and family life, pertains predominantly to relationships between living human beings, it is not excluded that these notions may extend to certain situations after death (see, in particular, Jones v. the United Kindgom (dec.), No. 42639/04, 13 September 2005, relating to the authorities’ refusal to allow the applicant to place a memorial stone with a photograph on his daughter’s grave and Elli Poluhas v. Sweden, No. 61564/00, § 24, ECHR 2006-I, relating to the authorities’ refusal to allow the applicant to transfer the urn containing her late husband’s ashes from one cemetery to another and Hadri-Vionnet v. Switzerland, No. 55525/00, § 52, 14 February 2008, relating to the burial of the applicant’s stillborn child by the authorities without giving her an opportunity to be present). In a recent case, the Court has found that the authorities’ refusal to return the bodies of the applicant’s relatives and the order of their burial in an unknown location, thus depriving the applicants of the opportunity to know the location of the gravesite and to visit it subsequently, constituted an interference with their private and family life (see, Sabanchiyeva and Others v. Russia, No. 38450/05, §§ 122 – 123, ECHR 2013 (extracts)).
- In the present case the applicant has submitted evidence, namely a copy of his former Soviet passport and his marriage certificate, which show that he was born in Gulistan in 1929 and got married there in 1955. Moreover, the Court has found it established that the applicant owned a house in Gulistan which, though badly damaged, still exists to date (see paragraph 197 above). His claim that, having built his house in the early 1960s, he lived there with his family until his flight in June 1992 is supported by a number of witness statements. Finally, the maps of Gulistan, submitted by the parties and the third-party Government, show that there was a cemetery in the village. As the applicant was from Gulistan and many of his relatives were living there, it is also credible that there were graves of his late relatives in the village’s cemetery.
- The Court therefore accepts that the applicant had a “home” in Gulistan, which he left involuntarily in June 1992. The gist of his complaint is precisely that he has been unable to return ever since. In these circumstances his prolonged absence cannot be considered to break the continuous link with his home. Furthermore, the Court finds it established that the applicant had lived in Gulistan for the major part of his life and must therefore have developed most of his social ties there. Consequently, his inability to return to the village also affects his “private life”. Finally, the Court considers that, in the circumstances of the case, the applicant’s cultural and religious attachment with his late relatives’ graves in Gulistan may also fall within the notion of “private and family life”. In sum, the inability of the applicant to return to his former place of residence affects his “private and family life” and “home”.
- In conclusion, the Court dismisses the Government’s objection as regards the applicant’s victim status in respect of his relatives’ graves and considers that the facts of the case fall within the notions of “private and family life” and “home”. Article 8 therefore applies.
- Whether there has been a continuing violation of Article 8 of the Convention
- The Court refers to the considerations set out above which led to the finding of a continuing violation of Article 1 of Protocol No. 1. It has found that due to the situation pertaining in Gulistan refusing the applicant, or any civilian, access to the village served the interest of protecting civilians against the dangers existing in the area. However, the impossibility for the applicant to have access to his property in Gulistan without the Government taking any alternative measures in order to restore his property rights or to provide him with compensation for his loss of their enjoyment, had placed and continued to place an excessive burden on him.
- The same considerations apply in respect of the applicant’s complaint under Article 8 of the Convention. The impossibility for the applicant to have access to his home and to his relatives’ graves in Gulistan without the Government taking any measures in order to address his rights or to provide him at least with compensation for the loss of their enjoyment, placed and continues to place a disproportionate burden on him.
- Accordingly, the Court concludes that there has been a continuing breach of the applicant’s rights under Article 8 of the Convention.
- Alleged violation of Article 13 of the Convention
- The applicant complained that no effective remedy was available to him in respect of all his above complaints. He relied on Article 13 which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
- The parties’ submissions
- The applicant
- The applicant referred, firstly, to the arguments submitted in respect of exhaustion of domestic remedies. Secondly, he argued in more detail that useful conclusions as to the requirements for effective remedies in a comparable context could be drawn from the Court’s case-law relating to Greek-Cypriot property in Northern Cyprus.
- In the case of Xenides-Arestis v. Turkey (dec.), (No. 46347/99, 14 March 2005), the Court had found that remedies available in the “TRNC” in respect of loss of access to and enjoyment of property and home were ineffective on a number of grounds. In the subsequent case of Demopoulos and Others, ((dec.), cited above, §§ 104 – 129) the Court examined the effectiveness of remedies which had been amended in the meantime. Having carried out a detailed examination, the Court was satisfied that the proceedings before the Immovable Property Commission provided an effective remedy. It noted in particular that the said commission which included two independent international members had been functioning for four years; that it had concluded eighty-five applications and some three-hundred other claims were pending before it; there was no evidence establishing that the proceedings would take an unreasonable length; the commission had paid out significant sums of money by way of compensation; claims could also be made in respect of non-pecuniary damage, including aspects of any loss of enjoyment of home; exchange of property had been effected in several cases; and there was a right to appeal to a court. The Demopoulos decision showed that the Court required substantial evidence of the effectiveness in practice of a purported remedy.
- Other examples of remedies which the Court had found effective in somewhat comparable situations, related to the eviction of villagers in south-east Turkey (see, v. Turkey (dec.), No. 18888/02, ECHR 2006-I).
- In contrast, in the present case the remedies which the Government claimed to be effective fulfilled none of these requirements.
- The respondent Government
- The Government referred in essence to their submissions concerning exhaustion of domestic remedies. They maintained in particular that Azerbaijani law protected both ownership and possession of property and provided adequate procedures which were accessible to citizens and foreigners allowing them to take action before the courts in respect of any loss or damage suffered on the territory of Azerbaijan.
- The Armenian Government, third-party intervener
- The Armenian Government supported the arguments submitted by the applicant. They maintained their position that there existed an administrative practice in Azerbaijan to prevent forcibly expelled Armenians, and generally any person of Armenian origin, from returning to or even visiting Azerbaijan.