CEDH · CASELAW;DECISIONS;DECGRANDCHAMBER;ENG — 14 décembre 2011

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Zupančič,   Elisabet Fura,   Alvina Gyulumyan,   Khanlar Hajiyev,   Egbert Myjer,   Sverre Erik Jebens,   Giorgio Malinverni,   George Nicolaou,   Luis López Guerra, judges, and Michael O’Boyle, Deputy Registrar, Having regard to the above application lodged on 6 April 2005, Having regard to the decision of 9 March 2010 by which the Chamber of the Third Section to which the case had originally been assigned relinquished its jurisdiction in favour of the Grand Chamber (Article 30 of the Convention), Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having regard to the comments submitted by the Azerbaijani Government, Having regard to the oral submissions of the parties and of the third party at the hearing on 15 September 2010, Having deliberated on 15, 16 and 22 September 2010 and on 14   December 2011, decides, on the last-mentioned date, as follows: THE FACTS 1.     The applicants Mr Elkhan Chiragov, Mr Adishirin Chiragov, Mr   Ramiz Gebrayilov, Mr Akif Hasanof and Mr Fekhreddin Pashayev, are Azerbaijani nationals. They now live in Baku, except Mr Hasanof who lives in the town of Sumgait. The sixth applicant, Mr Qaraca Gabrayilov, was an Azerbaijani national who died in 2005. His son, Mr Sagatel Gabrayilov, has expressed the wish to pursue the application on his father’s behalf. The applicants are represented before the Court by Mr M. Muller, Mr T. Otty, Ms C. Vine and Mr K. Yildiz, lawyers practising in London. The Armenian Government (“the Government”) are represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia before the Court. 2.     At the public hearing on 15 September 2010 the applicants were represented by Mr M. Muller, Mr M. Ivers and Ms C. Vine, counsel, assisted by Ms B. Poynor. 3.     The respondent Government were represented by their Agent, Mr   G.   Kostanyan, assisted by Mr E. Babayan, Ms S. Sahakyan and Mr   S.   Avakian. 4.     The Azerbaijani Government, who had made use of their right to intervene under Article 36 of the Convention, were represented by their Agent, Mr C. Asgarov, and by Mr M. Shaw, QC, and Mr G. Lansky, counsel, assisted by Mr H. Tretter and Mr O. Gvaladze. A.     The circumstances of the case 5.     The facts of the case are disputed by the parties and may be summarised as follows on the basis of the information available to the Court, without prejudice to the merits of the case. 1.     Background 6.     At the moment of the dissolution of the USSR in December 1991, the Nagorno-Karabakh Autonomous Oblast (“the NKAO”) was an autonomous province of the Azerbaijan Soviet Socialist Republic (“the Azerbaijan SSR”). Situated within the territory of the Azerbaijan SSR, it covered 4,388   sq. km. There was at that time no common border between Nagorno-Karabakh and the Armenian Soviet Socialist Republic (“the Armenian SSR”), which were separated by Azerbaijani territory, at the shortest distance by the district of Lachin, including a strip of land often referred to as the “Lachin corridor”, less than ten kilometres wide. 7.     According to the USSR census of 1989, the NKAO had a population of 189,000, consisting of 77% ethnic Armenians and 22% ethnic Azeris, with Russian and Kurdish minorities. The district of Lachin had a different demographic, the great majority of its population of some 60,000 being Kurds and Azeris. Only 5-6% were Armenians. 8.     In early 1988 demonstrations were held in Stepanakert, the regional capital of the NKAO, as well as in the Armenian capital of Yerevan, demanding the incorporation of Nagorno-Karabakh into Armenia. On 20   February the Soviet of the NKAO made a request to the Supreme Soviets of the Armenian SSR, the Azerbaijan SSR and the USSR that the NKAO be allowed to secede from Azerbaijan and join Armenia. The request was rejected by the Supreme Soviet of the USSR on 23 March. In June it was also rejected by the Supreme Soviet of Azerbaijan whereas its counterpart in Armenia voted in favour of unification. 9.     Throughout 1988 the demonstrations calling for unification continued. The district of Lachin was subjected to roadblocks and attacks. The clashes led to many casualties, and refugees, numbering hundreds of thousands on both sides, flowed between Armenia and Azerbaijan. As a consequence, on 12 January 1989 the USSR Government placed the NKAO under Moscow’s direct rule. However, on 28 November of that year, control of the province was returned to Azerbaijan. A few days later, on 1   December, the Supreme Soviet of the Armenian SSR and the Nagorno-Karabakh regional council adopted a joint resolution, “On the reunification of Nagorno-Karabakh with Armenia”. As a result of this resolution a joint budget for the two entities was established in January 1990 and a decision to include Nagorno-Karabakh in the upcoming Armenian elections was taken in the spring of that year. 10.     In early 1990, following an escalation of the conflict, Soviet troops arrived in Baku and Nagorno-Karabakh, and the latter province was placed under a state of emergency. Violent clashes between Armenians and Azeris continued, however, with the occasional intervention by Soviet forces. 11.     On 30 August 1991 Azerbaijan declared independence from the Soviet Union. This was subsequently formalised by means of the adoption of the Constitutional Act on the State Independence of 18 October. On 2   September the Soviet of the NKAO announced the establishment of the Nagorno-Karabakh Republic (hereinafter the “NKR”), consisting of the territory of the NKAO and the Shaumyan district of Azerbaijan, and declared that it was no longer under Azerbaijani jurisdiction. On 26   November the Azerbaijani Parliament abolished the autonomy previously enjoyed by Nagorno-Karabakh. In a referendum organised in Nagorno-Karabakh on 10 December, 99.9% voted in favour of secession. However, the Azeri population boycotted the referendum. In the same month, the Soviet Union was dissolved and Soviet troops began to withdraw from the region. Military control of Nagorno-Karabakh was rapidly passing to the Karabakh Armenians. On 6 January 1992 the “NKR”, having regard to the results of the referendum, reaffirmed its independence from Azerbaijan. 12.     In early 1992 the conflict gradually escalated into full-scale war. The ethnic Armenian side conquered several Azeri villages, leading to at least several hundred deaths and the departure of the population. 13.     The district of Lachin, in particular the town of Lachin, was attacked many times. The applicants claim that the attacks were made by troops of both Nagorno-Karabakh and the Republic of Armenia. The respondent Government maintain, however, that the Republic of Armenia did not participate in the events, but that military action was carried out by the defence army of Nagorno-Karabakh and volunteer groups. For almost eight months in 1991 the roads to Lachin were under the control of forces of Armenian ethnicity who manned and controlled checkpoints. The town of Lachin became completely isolated. In mid-May 1992 Lachin was subjected to aerial bombardment, in the course of which many houses were destroyed. 14.     On 17 May 1992, realising that troops were advancing rapidly towards Lachin, villagers fled. The following day the town of Lachin was captured by forces of Armenian ethnicity. It appears that the town was looted and burned in the days following the takeover. According to information obtained by the respondent Government from the authorities of the “NKR”, the city of Lachin and the surrounding villages of Aghbulag, Chirag and Chiragli were completely destroyed during the military conflict. 15.     In July 1992 the Armenian parliament decreed that it would not sign any international agreement stipulating that Karabakh remain a part of Azerbaijan. 16.     According to a Human Rights Watch (“HRW”) report (“Seven Years of Conflict in Nagorno-Karabakh”, December 1994), the capture of the district of Lachin created approximately 30,000 Azeri displaced persons, many of them of Kurdish descent. 17.     Following the capture of Lachin, ethnic Armenian forces continued to conquer four more Azerbaijani districts surrounding Nagorno-Karabakh (Kelbajar, Jabrayil, Gubadly and Zangilan) and substantial parts of two others (Agdam and Fizuli). 18.     On 5 May 1994 a ceasefire agreement (the Bishkek Protocol) was signed by Armenia, Azerbaijan and the "NKR" following Russian mediation. It came into effect on 12 May. 19.     According to the above-mentioned HRW report, between 1988 and 1994 an estimated 750,000-800,000 Azeris were forced out of Nagorno-Karabakh, Armenia, and the seven Azerbaijani districts surrounding Nagorno-Karabakh. According to information from Armenian authorities, 335,000 Armenian refugees from Azerbaijan and 78,000 internally displaced persons (from regions in Armenia bordering Azerbaijan) have been registered. 2.     Current situation 20.     According to the respondent Government, the “NKR” controls 4,061   sq. km of the former Nagorno-Karabakh Autonomous Oblast. While it is debated how much of the two partly conquered districts is occupied by the “NKR”, it appears that the occupied territory of the seven surrounding districts in total amounts to some 7,500 sq. km. 21.     Estimates of today’s population of Nagorno-Karabakh vary between 120,000 and 145,000 people, 95% being of Armenian ethnicity. Virtually no Azerbaijanis remain. The district of Lachin has a population of between 5,000 and 10,000 Armenians. 22.     No political settlement of the conflict has so far been reached. The self-proclaimed independence of the “NKR” has not been recognised by any State or any international organisations. Negotiations for a peaceful solution have been carried out under the auspices of the OSCE (Organization for Security and Co-operation in Europe) and its so-called Minsk Group. Several proposals for a settlement have failed. In Madrid in November 2007 the Group’s three Co-Chairs – France, Russia and the United States – presented to Armenia and Azerbaijan a set of Basic Principles for a settlement. The Basic Principles, which have since been updated, call, inter alia , for the return of the territories surrounding Nagorno-Karabakh to Azerbaijani control, an interim status for Nagorno-Karabakh providing guarantees for security and self-governance, a corridor linking Armenia to Nagorno-Karabakh, a future determination of the final legal status of Nagorno-Karabakh through a legally binding referendum, the right of all internally displaced persons and refugees to return to their former places of residence, and international security guarantees that would include a peacekeeping operation. The idea is that the endorsement of these principles by Armenia and Azerbaijan would enable the drafting of a comprehensive and detailed settlement. Following intensive shuttle diplomacy by Minsk Group diplomats and a number of meetings between the Presidents of the two countries in 2009, the process lost momentum in 2010. So far the parties to the conflict have not signed a formal agreement on the Basic Principles. 23.     On 24 March 2011 the Minsk Group presented a “Report of the OSCE Minsk Group Co-Chairs’ Field Assessment Mission to the Occupied Territories of Azerbaijan Surrounding Nagorno-Karabakh”, the executive summary of which reads as follows: “The OSCE Minsk Group Co-Chairs conducted a Field Assessment Mission to the seven occupied territories of Azerbaijan surrounding Nagorno-Karabakh (NK) from October 7-12, 2010, to assess the overall situation there, including humanitarian and other aspects. The Co-Chairs were joined by the Personal Representative of the OSCE Chairman-in-Office and his team, which provided logistical support, and by two experts from the UNHCR and one member of the 2005 OSCE Fact-Finding Mission. This was the first mission by the international community to the territories since 2005, and the first visit by UN personnel in 18 years. In travelling more than 1,000 kilometers throughout the territories, the Co-Chairs saw stark evidence of the disastrous consequences of the Nagorno-Karabakh conflict and the failure to reach a peaceful settlement. Towns and villages that existed before the conflict are abandoned and almost entirely in ruins. While no reliable figures exist, the overall population is roughly estimated as 14,000 persons, living in small settlements and in the towns of Lachin and Kelbajar. The Co-Chairs assess that there has been no significant growth in the population since 2005. The settlers, for the most part ethnic Armenians who were relocated to the territories from elsewhere in Azerbaijan, live in precarious conditions, with poor infrastructure, little economic activity, and limited access to public services. Many lack identity documents. For administrative purposes, the seven territories, the former NK Oblast, and other areas have been incorporated into eight new districts. The harsh reality of the situation in the territories has reinforced the view of the Co-Chairs that the status quo is unacceptable, and that only a peaceful, negotiated settlement can bring the prospect of a better, more certain future to the people who used to live in the territories and those who live there now. The Co-Chairs urge the leaders of all the parties to avoid any activities in the territories and other disputed areas that would prejudice a final settlement or change the character of these areas. They also recommend that measures be taken to preserve cemeteries and places of worship in the territories and to clarify the status of settlers who lack identity documents. The Co-Chairs intend to undertake further missions to other areas affected by the NK conflict, and to include in such missions experts from relevant international agencies that would be involved in implementing a peace settlement.” 3.     The applicants and property allegedly owned by them in the district of Lachin 24.     The applicants have stated that they are Azerbaijani Kurds who lived in the district of Lachin, where their ancestors had lived for hundreds of years. On 17 May 1992 they were forced to flee from the district to Baku. They have since been unable to return to their homes and properties because of Armenian occupation. (a)     Mr Elkhan Chiragov 25.     Mr Elkhan Chiragov was born in 1950. He lived in the district of Lachin. In the original application, it was mentioned that he lived in the village of Chirag, but in the reply to the Government’s observations it was stated that his correct home village was Chiragli, where he worked as a teacher for 15 years. He claimed that his possessions included a large furnished house of 250 sq. m, 55 beehives, 80 head of small livestock and nine head of big livestock, and five handmade carpets. 26.     On 27 February 2007, together with the applicants’ reply to the respondent Government’s observations, he submitted an official certificate (“technical passport”), dated 19 July 1985, according to which a two-storey, 12-bedroom dwelling-house with a total area of 408 sq. m (living area 300   sq. m and subsidiary area 108 sq. m) and a storehouse of 60 sq. m, situated on a plot of land of 1200 sq. m, had been registered in his name. 27.     He also presented a statement by three former neighbours, who affirmed that he owned a two-storey, 16-room dwelling-house of 260 sq. m as well as a car. 28.     Before the Grand Chamber, the applicant submitted, inter alia , a marriage certificate according to which he was born in Chiragli and married there in 1978, birth certificates for his son and daughter, both born in Chiragli, in 1979 and 1990 respectively, as well as a 1979 letter and a 1992 employment book issued by the Lachin District Educational Department, showing that he worked as a teacher in Chiragli. (b)     Mr Adishirin Chiragov 29.     Mr Adishirin Chiragov was born in 1947. He lived in the district of Lachin. In the original application, it was mentioned that he lived in the village of Chirag, but in the reply to the Government’s observations it was stated that his correct home village was Chiragli, where he worked as a teacher for 20 years. He claimed that his possessions included a large furnished house of 145 sq. m, a new “Niva” car, 65 head of small livestock and 11 head of big livestock, and six handmade carpets. 30.     On 27 February 2007 he submitted an official certificate (“technical passport”) dated 22 April 1986, according to which a two-storey, eight-bedroom dwelling-house with a total area of 230.4 sq. m (living area 193.2   sq. m and subsidiary area 37.2 sq. m) and a storehouse of 90 sq. m, situated on a plot of land of 1200 sq. m, had been registered in his name. 31.     He also presented a statement by three former neighbours, who affirmed that he owned a two-storey dwelling-house with eight rooms. 32.     Before the Grand Chamber, the applicant submitted, inter alia , a marriage certificate according to which he was born in Chiragli and married there in 1975, birth certificates for his son and two daughters, all born in Chiragli, in 1977, 1975 and 1982 respectively, as well as a USSR passport issued in 1981, indicating Chiragli as place of birth and containing a 1992 registration stamp designating Chiragli as place of residence. (c)     Mr Ramiz Gebrayilov 33.     Mr Ramiz Gebrayilov was born in Chiragli in 1960. In 1988 he graduated with a degree in engineering from the Polytechnic Institute in Baku. In 1983, while still studying in Baku, he visited the town of Lachin and was given a 5,000 sq. m plot of land by the State. He claimed that he built a six-bedroom house with a garage on it and lived there with his wife and children until he was forced to leave in 1992. There were also some cattle sheds. He also owned a car repair business called “Auto Service”, a shop and a café, which were situated on a further 5,000 sq. m of land that he owned. In addition, he had 12 cows, 70 lambs and 150 sheep. 34.     Mr Gebrayilov had been unable to return to Lachin since his departure in 1992. In 2001 Armenian friends went to Lachin and videotaped the condition of the houses in the town. According to the applicant, he could see from the video that his house had been burnt down. He had also been informed by people who left Lachin after him that his house had been burnt down by Armenian forces a few days after he had left Lachin. 35.     On 27 February 2007, Mr Gebrayilov submitted an official certificate (“technical passport”), dated 15 August 1986, according to which a two-storey, eight-bedroom dwelling-house with a total area of 203.2 sq. m (living area 171.2 sq. m and subsidiary area 32 sq. m), situated on a plot of land of 480 sq. m, had been registered in his name. 36.     He also presented a statement by three former neighbours, who affirmed that he owned a two-storey house with eight rooms. 37.     Before the Grand Chamber, the applicant submitted, inter alia , a birth certificate and a marriage certificate according to which he was born in Chiragli and married there in 1982, birth certificates for his daughter and two sons, all born in Lachin, in 1982, 1986 and 1988 respectively, as well as an army book issued in 1979. (d)     Mr Akif Hasanof 38.     Mr Akif Hasanof was born in 1959 in the village of Aghbulag in the district of Lachin. He worked there as a teacher for 20 years. He claimed that his possessions included a large furnished house of 165 sq. m, a new “Niva” car, 100 head of small livestock and 16 head of big livestock, and 20   handmade carpets. 39.     On 27 February 2007 he submitted an official certificate (“technical passport”), dated 13 September 1985, according to which a two-storey, nine-bedroom dwelling-house with a total area of 448.4 sq. m (living area 223.2 sq. m and subsidiary area 225.2 sq. m) and a storehouse of 75 sq. m, situated on a plot of land of 1600 sq. m, had been registered in his name. 40.     He also presented a statement by three former neighbours, who affirmed that he owned a two-storey, nine-room dwelling-house as well as a stall for livestock and subsidiary buildings. 41.     Before the Grand Chamber, the applicant submitted a birth certificate, a USSR passport issued in 1976 and an employment book issued by the Lachin District Educational Department, indicating that he was born in Aghbulag and had worked as a teacher and school director in that village between 1981 and 1988. (e)     Mr Fekhreddin Pashayev 42.     Mr Fekhreddin Pashayev was born in 1956 in the village of Kamalli in the district of Lachin. After graduating with a degree in engineering from the Polytechnic Institute in Baku in 1984, he returned to the town of Lachin where he was employed as an engineer and, from 1986, as chief engineer at the Ministry of Transport. He claimed that he owned and lived in a two-storey, three-bedroom house in Lachin which he had built himself. The house was situated at no. 50, 28 Aprel Kucesi, Lachin Seheri, Lachin Rayonu. Mr Pashayev submitted that the current market value of the house would be 50,000 US dollars. He also owned the land around his house and had a share (about ten hectares) in a collective farm in Kamalli. Furthermore, he owned some land by means of “collective ownership”. 43.     On 27 February 2007 he submitted an official certificate (“technical passport”), dated August 1990, according to which a two-storey dwelling-house with a total area of 133.2 sq. m (living area 51.6 sq. m and subsidiary area 81.6 sq. m), situated on a plot of land of 469.3 sq. m, had been registered in his name. 44.     He also presented a statement by three former neighbours, who affirmed that he owned a two-storey, four-room dwelling-house. 45.     Before the Grand Chamber, the applicant submitted, inter alia , a marriage certificate according to which he was born in Kamalli and married there in 1985, birth certificates for his two daughters, born in Kamalli in 1987 and in Lachin in 1991 respectively, a birth certificate for his son, registered as having been born in Kamalli in 1993, as well as an army book issued in 1978 and an employment book dated in 2000. He explained that, while his son had in fact been born in Baku, it was normal under the USSR propiska system to record a child as having been born at the parents’ registered place of residence. (f)     Mr Qaraca Gabrayilov 46.     Mr   Qaraca Gabrayilov was born in the town of Lachin in 1940 and died on 19 June 2005. On 6 April 2005, at the time of submitting the present application, he stated that, when he was forced to leave on 17 May 1992, he had been living at holding no. 580, N. Narimanov Street, apt 128a in the town of Lachin, a property he owned and which included a two-storey residential family house built in 1976 with a surface of 187.1 sq. m and a yard area of 453.6 sq. m. He also claimed that he owned a further site of 300   sq. m on that street. Annexed to the application, he submitted an official certificate (“technical passport”), dated August 1985, according to which a two-storey house with a yard, of the mentioned sizes, had been registered in his name. 47.     On 27 February 2007 the applicant’s representatives submitted, however, that he had been living at 41 H. Abdullayev Street in Lachin. Still, he owned the two properties on N. Narimanov Street. Attached to these submissions was a statement by three former neighbours and a statement by V.   Maharramov, Lachin City Executive Power Representative of the Azerbaijan Republic, who stated that Mr Gabrayilov had used to live in his own house at H. Abdullayev Street. Attached were also a decision of 29   January 1974 by the Lachin District Soviet of Popular Deputies to allocate the above-mentioned plot of 300 sq. m to the applicant and several invoices for animal feed, building materials and building subsidies allegedly used during the construction of his properties. 48.     On 21 November 2007 Mr Sagatel Gabrayilov, the son of the applicant, stated that the family had used to live at N. Narimanov Street but that, on some unspecified date, the name and numbering of the street had been changed and their address was thereafter H. Abdullayev Street. Thus, the two addresses mentioned above referred to the same property. 49.     Before the Grand Chamber, the applicant’s representatives submitted, inter alia , a birth certificate and a marriage certificate according to which he was born in Chiragli and married there in 1965, a birth certificate for his son, born in Alkhasli village in the district of Lachin in 1970, as well as an army book issued in 1963. B.     Armenia’s and Azerbaijan’s joint undertaking in respect of the settlement of the Nagorno-Karabakh conflict 50.     Prior to their accession to the Council of Europe, Armenia and Azerbaijan gave undertakings to the Committee of Ministers and the Parliamentary Assembly committing themselves to the peaceful settlement of the Nagorno-Karabakh conflict (see Parliamentary Assembly Opinions 221 (2000) and 222 (2000) and Committee of Ministers Resolutions Res (2000)13 and (2000)14). The relevant paragraphs of Parliamentary Assembly Opinion 221 (2000) on Armenia’s application for membership of the Council of Europe read as follows: “10.     The Assembly takes note of the letter from the President of Armenia in which he undertakes to respect the cease-fire agreement until a final solution is found to the conflict [in Nagorno-Karabakh] and to continue the efforts to reach a peaceful negotiated settlement on the basis of compromises acceptable to all parties concerned. ... 13.     The Parliamentary Assembly takes note of the letters from the President of Armenia, the speaker of the parliament, the Prime Minister and the chairmen of the political parties represented in the parliament, and notes that Armenia undertakes to honour the following commitments: ... ii.     the conflict in Nagorno-Karabakh: a.     to pursue efforts to settle this conflict by peaceful means only; b.     to use its considerable influence over the Armenians in Nagorno-Karabakh to foster a solution to the conflict; c.     to settle international and domestic disputes by peaceful means and according to the principles of international law (an obligation incumbent on all Council of Europe member states), resolutely rejecting any threatened use of force against its neighbours; ...” Resolution Res (2000)13 by the Committee of Ministers concerning the invitation to Armenia to become a member of the Council of Europe refers to the commitments entered into by Armenia, as set out in Opinion   221   (2000), and the assurances for their fulfilment given by the Armenian Government. COMPLAINTS 51.     The applicants complained under Article 1 of Protocol No. 1 that the loss of all control over as well as all potential to use, sell, bequeath, mortgage, develop and enjoy their properties constituted an interference with their right to peaceful enjoyment of their possessions. They submitted that this interference amounted to a continuing violation of Article 1 of Protocol No. 1, since it was the result of a territory being occupied. They alleged that they had been forced to leave their homes as a result of the actions of Armenian-backed Karabakh forces and had been prevented from returning to their properties by these occupying forces. There was no prospect of their being permitted to return to their properties or anywhere in the occupied territories in the foreseeable future. Furthermore, the applicants feared that their properties had been destroyed and pillaged in the days following their flight. They claimed that the deprivation of their property rights had not been in accordance with law and the general principles of international law. Moreover, there had been no attempt by the Armenian authorities to compensate them for their losses. Finally, whatever the aim of the occupation of Lachin, their total exclusion from their properties and the destruction of those properties could not be regarded as having been proportionate to the achievement of that aim. 52.     The applicants further complained under Article 8 of the Convention that their right to respect for their private and family life and their homes had been infringed by the respondent Government’s continuing refusal to allow them to return to Lachin. This interference was not justified under Article 8 § 2 of the Convention. Furthermore, the respondent Government were in breach of their positive obligations to protect the rights of the applicants enshrined in this Article. 53.     Moreover, the applicants complained under Article 13 of the Convention that the respondent Government had failed to provide an effective or any remedy to persons displaced from the occupied territories and, in particular, to the applicants, in respect of the violations of Article 1 of Protocol No. 1 and Article 8 of the Convention. 54.     Finally, the applicants claimed, under Article 14 of the Convention in conjunction with all above Articles, that they had been subjected to discrimination in their treatment by the respondent Government by virtue of ethnic and religious affiliation since, if they had been ethnic Armenian and Christian, they would not have been forcibly displaced from their homes by the Armenian-backed Karabakh forces. Furthermore, the respondent Government had failed to recognise their property rights and to investigate their complaints because of their ethnic and religious status. They also submitted that they had been subjected to indirect discrimination by the respondent Government since the actions taken by the Armenian military and the Armenian-backed Karabakh forces had disproportionately affected Azerbaijani Kurds, who were individuals belonging to an identifiable group. THE LAW I.     PRELIMINARY ISSUES 55.     The Court notes at the outset that the sixth applicant died after the present application was lodged. Moreover, in their written and oral submissions, the respondent Government have raised a number of preliminary objections to the admissibility of the application. The Court will examine these issues in the following order: -   pursuance of the application lodged by the sixth applicant; -   another international procedure; -   jurisdiction and responsibility of the respondent State; -   the Court’s jurisdiction ratione temporis ; -   the applicants’ status as victims; -   exhaustion of domestic remedies; -   compliance with the six-month rule. A.     The right of the sixth applicant’s son to pursue the application 56.     Mr Sagatel Gabrayilov, the son of the sixth applicant, expressed the wish to continue the proceedings before the Court. It has not been disputed that he is entitled to pursue the application on his father’s behalf and the Court sees no reason to hold otherwise (see, among other authorities, David v. Moldova , no. 41578/05, § 28, 27 February 2008). B.     Another procedure of international investigation or settlement 1.     The parties’ submissions (a)     The respondent Government 57.     Referring to the ongoing negotiations conducted within the Minsk Group of the OSCE – which comprise questions relating to resettlement of refugees and internally displaced persons as well as compensation issues – the Armenian Government submitted that the matters raised in the present application had already been submitted to another international institution for settlement. Consequently, the Government claimed that the application failed to comply with the requirements of Article 35 § 2 (b) of the Convention. (b)     The applicants 58.     The applicants maintained that the negotiations within the Minsk Group were not judicial or quasi-judicial proceedings similar to those set up by the Convention. The applicants were not individual parties to that process. Thus, they claimed that the present application was not substantially the same as the issues relating to refugees dealt with by the OSCE and that, accordingly, the application complied with Article 35 §   2   (b). (c)     The Azerbaijani Government, third-party intervener 59.     The Azerbaijani Government submitted that the OSCE did not have a procedure for investigation of an individual application within the meaning of the Convention. Thus, as the present application had not been – and could not be – submitted to the OSCE for settlement, the negotiations within that organisation could not be seen as a “procedure of international investigation or settlement” within the meaning of Article 35 § 2 (b). 2.     The Court’s assessment 60.     Article 35 § 2 of the Convention provides, in so far as relevant, the following: “The Court shall not deal with any application submitted under Article 34 that ... (b)     is substantially the same as a matter that ... has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.” 61.     The Court notes that a criterion for finding that the application before the Court is substantially the same as another matter is that the latter has been submitted by way of a petition lodged formally or substantively by the same applicants (see Varnava and Others v. Turkey , nos. 16064-66/90 and 16068-73/90, Commission decision of 14 April 1998, Decisions and Reports 93, p. 5, at p. 14, and Folgerø and Others v. Norway (dec.), no.   15472/02, 14 February 2006). This is not the case with the interstate talks conducted within the OSCE, where the applicants are not parties and which cannot examine whether the applicants’ individual rights have been violated. In these circumstances, the Court considers that the OSCE proceedings do not constitute a “procedure of international investigation or settlement” of the matters which are the subject of the present application (see OAO Neftyanaya Kompaniya Yukos v. Russia , 14902/04, §§ 520-526, 20 September 2011). 62.     Consequently, the Court rejects the respondent Government’s objection under Article 35 § 2 (b) of the Convention. C.     Jurisdiction and responsibility of the respondent State 1.     The parties’ submissions (a)     The respondent Government 63.     The Armenian Government submitted that the jurisdiction of the Republic of Armenia did not extend to the territory of Nagorno-Karabakh and the surrounding regions. Allegedly, the Republic of Armenia did not and could not have effective control of or exercise any public power on these territories. 64.     The Armenian Government asserted that the Republic of Armenia had not participated in the military conflict in Nagorno-Karabakh and the surrounding regions. The military actions had been conducted by the “NKR”, in self-defence against Azerbaijani attacks following the proclamation of the “NKR”. The Armenian Army had not and could not participate in these actions. This was shown by the fact that there was not a single mention of the Armenian Army’s participation in any international document. Instead, these documents talked about “local Armenian forces”. Nor had the authorities of the Republic of Armenia adopted any legal acts or programmes or taken other official steps to get involved in the actions. Instead, the self-defence had been conducted by the “NKR Defence Army”, which had been established in early 1992 following the enactment of the “NKR” Law on Conscription. It had been assisted by the Armenian population in Nagorno-Karabakh and the surrounding regions as well as volunteers of Armenian origin from various countries. The Republic of Armenia had only been involved in the war in so far as it had defended itself against Azerbaijani attacks on territory within the recognised borders of Armenia. 65.     Furthermore, the Republic of Armenia did not currently have any military presence in Nagorno-Karabakh and the surrounding regions. No military detachment, unit or body was stationed there. In the district of Lachin there were no military units at all, as Lachin was at a considerable distance from the “NKR” border with Azerbaijan and there was thus no military need to keep units there. It could not be ruled out that some Armenian nationals may have served in the “NKR Defence Army” on a contractual and voluntary basis. Also, according to an agreement on military cooperation signed on 25 June 1994 by the Armenian and “NKR” Governments, draftees from the Republic of Armenia, upon their consent, may perform their military service in the “NKR” and vice versa, as well as participate in military exercises organised in the “NKR” or in Armenia. However, only a small number of Armenian volunteer conscripts had served in Nagorno-Karabakh where, moreover, they had been under the direct command of the “NKR Defence Army”. The presence of these conscripts did not amount to effective control or occupation by the Republic of Armenia. The present case was thus clearly distinguishable from the case of Loizidou v. Turkey ([GC], no. 15318/89, ECHR 1996-VI). 66.     The Armenian Government further submitted that the “NKR”, since its formation, carried out its political, social and financial policies independently. The Republic of Armenia did not provide any economic help to the “NKR” except that, for several years, it had provided the “NKR” with long-term loans for the implementation of specific projects, including the rebuilding of schools and other educational institutions and the provision of financial help to the families of killed soldiers. Such help had been provided by other countries as well. Moreover, the “All Armenian Fund”, registered in the United States, played a great role in the development of the “NKR”. It had branches in 19 countries and had as its main mission to provide financial help to Armenia and the “NKR”, using resources collected by the Armenian Diaspora. While there were seven representatives of Armenia on the Board of Trustees, the majority of the board’s 24 members were collected from the Armenian Diaspora and the “NKR”. The fund had provided 85 million US dollars to the “NKR” for the rebuilding of roads and other infrastructure. Further resources were provided by other funds and international organisations. Charity and international investments in the “NKR” annually accounted for 20-30 and 30-40 million US dollars respectively. 67.     In the view of the Armenian Government, the “NKR” was a sovereign, independent state possessing all the characteristics of an independent state in accordance with international law. It exercised control and jurisdiction of Nagorno-Karabakh and the territories surrounding it. Only the laws and other legal acts of the “NKR” were applied on these territories, political elections were held and “NKR” passports were issued to its citizens, who had political rights and civil obligations on the basis of their citizenship. Currencies used were the US dollar, the euro and the Armenian dram. Armenia’s political support was limited to taking part in the settlement negotiations conducted within the framework of the OSCE Minsk Group, with a view to regulate the Nagorno-Karabakh conflict. 68.     In conclusion, the Armenian Government maintained that the present application failed to meet the requirements of Article 35 § 3 of the Convention ratione loci . (b)     The applicants 69.     The applicants submitted that the Republic of Armenia exercised effective control over Nagorno-Karabakh and, more specifically, Lachin, and that their complaints therefore fell within the jurisdiction of Armenia in accordance with Article 1 of the Convention. 70.     The applicants claimed that Armenia’s military participation in the Nagorno-Karabakh conflict had been considerable. They submitted, inter alia , that Armenian conscripts had served in Nagorno-Karabakh. According to the above-mentioned HRW report of 1994, Armenian conscripts had been sent to Nagorno-Karabakh and the surrounding Azerbaijani provinces, and military forces – not volunteers – from the Republic of Armenia had taken part in fighting in Azerbaijan. Thirty per cent of the Armenian uniformed soldiers interviewed by HRW on the streets of Yerevan had been draftees in the Armenian Army who had either fought in Karabakh, had orders to go to Karabakh or had ostensibly volunteered for service there. Moreover, on a single day in 1994 HRW researchers had counted five buses holding an estimated 300 soldiers of the Armenian Army entering Nagorno-Karabakh from Armenia. Other western journalists had reported to HRW researchers that they had seen more buses full of Armenian Army soldiers heading for Azerbaijani territory from Armenia. 71.     The applicants also referred to statements by various political leaders and observers. In reference to fighting in April 1993 in the Azerbaijani province of Kelbajar, UN Secretary-General Boutros Ghali had stated that the level of heavy weaponry involved on the Karabakh Armenian side pointed towards Armenian Army involvement. On 1 February 1994 Robert Kocharyan, then Prime Minister of Nagorno-Karabakh, had admitted in Golos Armenii , an Armenian newspaper, that the Republic of Armenia had supplied anti-aircraft weapons to Nagorno-Karabakh. In 2000 President   Clinton had submitted to the United States Congress: “The actions taken by the Government of Armenia in the context of the conflict over Nagorno-Karabakh are inconsistent with the territorial integrity and national sovereignty principles of the Helsinki Final Act. Armenia supports Nagorno-Karabakh separatists in Azerbaijan both militarily and financially. Nagorno-Karabakh forces, assisted by units of the Armenian armed forces, currently occupy the Nagorno-Karabakh region and surrounding areas in Azerbaijan.” Moreover, Vazgen Manukyan, appointed as Armenian Defence Minister in October 1992, had admitted in an interview in October 2000 that the public declarations that the Armenian Army had taken no part in the war had been purely for foreign consumption: “You can be sure that, whatever we said politically, the Karabakh Armenians and the Armenian Army were united in military actions. It made no difference to me whether someone was a Karabakhi or an Armenian.” 72.     The applicants also adduced as evidence of the involvement of the Armenian Army in the fighting the capture of a number of its soldiers by Azerbaijani units and the increased Armenian draft requirements at the material time. They further submitted that conscripts of the Armenian Army were still sent to serve in Nagorno-Karabakh, that such service entitled the officers and soldiers to higher salaries than if they had served in Armenia and that conscripts had no choice as to where they would like to be deployed, in Armenia or in Nagorno-Karabakh. In support of this assertion, they referred, inter alia , to several judicial and administrative proceedings that had been taken in Stepanakert against Armenian military personnel and an Armenian conscientious objector. 73.     In addition to committing troops to the conflict, the Republic of Armenia had, according to the applicants, provided material aid to Nagorno-Karabakh. Allegedly, Armenia supplied as much as 90% of the enclave’s budget in the form of interest-free credits. These credits constituted financial assistance which contributed to the Armenia’s effective control over Nagorno-Karabakh and the surrounding territories. As to the “All Armenian Fund”, the applicants submitted that it could not be seen as a distinct body independent of the Armenian Government, as it had been established by Presidential Decree, as its charter designated the Armenian President as President of the Board of Trustees and as that board otherwise included several of the highest-ranking representatives of the Armenian Government, Parliament, Constitutional Court and Central Bank. Furthermore, its mission was to support sustainabl