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

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margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sE5338F84 { margin-top:12pt; margin-left:14.2pt; margin-bottom:12pt; text-align:justify } .s27D1EF28 { margin-top:12pt; margin-left:14.2pt; margin-bottom:24pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sAD9CA6D3 { margin-top:24pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s78D59C6D { width:193.3pt; display:inline-block }   GRAND CHAMBER DECISION Application no. 40167/06 Minas SARGSYAN against Azerbaijan The European Court of Human Rights, sitting on 14 December 2011 as a Grand Chamber composed of:   Nicolas Bratza, President,   Jean-Paul Costa,   Christos Rozakis,   Françoise Tulkens,   Josep Casadevall,   Nina Vajić,   Corneliu Bîrsan,   Peer Lorenzen,   Boštjan M. 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 11 August 2006, Having regard to the decision of 11 March 2010 by which the Chamber of the First 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 applicant, Having regard to the comments submitted by the Armenian Government, Having regard to the oral submissions of the parties and 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 applicant, Mr Minas Sargsyan, is an Armenian national who was born in 1929 and died in 2009. His widow, Lena Sargsyan, born in 1936 and their children, Vladimir, Tsovinar and Nina Sargsyan, born in 1957, 1959, and 1966 respectively, have expressed the wish to pursue the application on his behalf. The applicant is represented before the Court by Ms   N.   Gasparyan and Ms K. Ohanyan, lawyers practising in Yerevan. The Azerbaijani Government (“the Government”) are represented by their Agent, Mr C. Asgarov. 2.     At the oral hearing on 15 September 2010 the applicant was further represented by Ms N. Gasparyan and Mr. P. Leach, counsel, assisted by Ms   K. Ohanyan and Mr A. Aloyan. 3.     The respondent Government were represented by their Agent, Mr   C.   Asgarov, Mr M. Shaw, QC, and Mr G. Lansky, counsel, assisted by Mr H. Tretter and Mr O. Gvaladze. 4.     The Armenian Government, who had made use of their right to intervene under Article 36 of the Convention, were represented by their Agent, Mr G. Kostanyan, assisted by Mr E. Babayan, Ms S. Sahakyan and Mr S. Avakian. 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 around 189,000, consisting of 77% ethnic Armenians and 22% ethnic Azeris, with Russian and Kurdish minorities. 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 1988 the Soviet of the NKAO appealed to the Supreme Soviets of the Armenian SSR, 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”. 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 1991. On 2 September 1991 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 Shahumyan district of Azerbaijan, and declared that it was no longer under Azerbaijani jurisdiction. On 26 November 1991 the Azerbaijani Parliament abolished the autonomy previously enjoyed by Nagorno-Karabakh. In a referendum organised in Nagorno-Karabakh on 10 December 1991, 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. By the end of 1993, ethnic Armenian forces had gained control over almost the entire territory of the former NKAO as well as seven adjacent Azerbaijani regions (Lachin, Kelbajar, Jabrayil, Gubadly and Zangilan and substantial parts of Agdam and Fizuli). 13.     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. 14.     According to a Human Rights Watch report ( Seven years of Conflict in Nagorno-Karabakh , December 1994), 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 15.     According to the Armenian Government, the “NKR” controls 4,061 sq. km of the former Nagorno-Karabakh Autonomous Oblast. It appears that the occupied territory of the seven surrounding districts in total amount to 7,409   sq. km (see Nagorno-Karabakh: Viewing the Conflict from the Ground , International Crisis Group, Europe Report No. 166, 11 September 2005, p.   1). 16.     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. 17.     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 organisation. 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 later have 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. 18.     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 traveling 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 applicant and the property allegedly owned by him in the Shahumyan region 19.     The applicant, an ethnic Armenian, states that he and his family used to live in the village of Gulistan in the Shahumyan region of the Azerbaijan SSR. He claims to have had a house and outhouses there. 20.     Geographically, Shahumyan shared a border with the NKAO and was situated to the north of it. The region did not form part of the NKAO, but was later claimed by the “NKR” as part of its territory (see above paragraph 11). According to the applicant, 82% of the population of Shahumyan had been ethnic Armenians prior to the conflict. 21.     In January 1991 Shahumyan was abolished as a separate administrative region and was formally incorporated into the present-day Goranboy region of the Republic of Azerbaijan. 22.     In April-May 1991 the USSR Internal Forces and the special-purpose militia units (“the OMON”) of the Azerbaijan SSR launched a military operation with the stated purpose of “passport checking” and disarming local Armenian militants in the region. However, according to various sources, the government forces, using the official purpose of the operation as a pretext, expelled the Armenian population of a number of villages in the Shahumyan region, thus forcing them to leave their homes and flee to Nagorno ‑ Karabakh or Armenia. The expulsions were accompanied by arrests and violence towards the civilian population. It is not clear whether Gulistan, the applicant’s village, was affected by these events, as the applicant appears to have remained in the village after the operation was aborted. 23.     However, when the conflict escalated into a full-scale war, Gulistan came under direct attack by Azerbaijani forces. From 12 to 13 June 1992 the village was heavily bombed. The entire population of the village, including the applicant and his family members, fled in fear for their lives. 24.     It is not clear whether the applicant’s house has been destroyed. The applicant’s submissions in that respect are contradictory: In his application he stated that the house had been destroyed during the attack but also alleged that he had been informed later that other persons were illegally occupying it. 25.     The applicant and his family fled to Armenia. Subsequently, the applicant and his wife lived as refugees in Erevan. In 2002 the applicant obtained Armenian citizenship. He was seriously ill from 2004. He died on 13 April 2009 in Erevan. 26.     The parties’ positions differ in respect of the applicant’s residence and possessions in Gulistan and in respect of the current situation obtaining in Gulistan. (a)     The applicant’s position 27.     The applicant maintained that he had lived in Gulistan for most of his life until his forced displacement in 1992. In support of this claim he submitted a copy of his former Soviet passport issued in 1979, from which it can be seen that the applicant was born in Gulistan. He also submitted his marriage certificate, which shows that he and his wife, who was also born in Gulistan, got married there in 1955. In addition, the applicant asserted that having grown up in Gulistan, he left for some years to complete his military service and to work in the town of Sumgait. A few years after his marriage he returned to Gulistan, where he lived until June 1992. 28.     In respect of his house the applicant submitted a copy of an official certificate (“technical passport”) when he lodged the application. According to that document, dated 20 May 1991, a two-storey house in Gulistan and outhouses of a total area of 167 sq. m and 2,160 sq. m of land were registered in the applicant’s name. Furthermore he submitted a detailed plan of the main house. 29.     Of the 167 sq. m on which the house stood, 76 sq. m were occupied by the main house and 91 by various outhouses including a cow-shed. Of the 2,160 sq. m of land 1,500 were a fruit and vegetable garden. The document contains information of a technical nature (for instance the building materials used) concerning the main house and the outhouses. 30.     In addition, the applicant explained that he had obtained the land by permission of the Village Council to divide his father’s plot of land between him and his brother. The decision was recorded in the Village Council’s register. With the help of relatives and friends, he and his wife built their house on that plot of land in 1962-63. In support of his claims he submitted written statements of eight witnesses, family members and former neighbours and friends from Gulistan. Furthermore, the applicant explained that he had been a secondary school teacher in Gulistan and had earned his living partly from his salary and partly from farming and stock-breeding on his land while his wife had been working at the village’s collective farm since the 1970s. 31.     Regarding the current situation in Gulistan, the applicant asserted that the Republic of Azerbaijan had control over the village. In his view there was nothing to prove that Gulistan was on the Line of Contact (LoC) between Azerbaijani and “NKR” forces as claimed by the respondent Government. He commented that the evidence, including the maps submitted by the Government, stemmed exclusively from unofficial sources and were therefore insufficient to prove the respondent Government’s lack of control over the area. The applicant submitted a written statement from an anonymous senior officer of the “NKR” armed forces dated 11 August 2010, according to whom Gulistan is under the de facto control of Azerbaijani military forces. Moreover, he asserted that fellow villagers had tried to return to Gulistan on several occasions but had been unable to enter the village as they would have risked to be shot at by Azerbaijani forces. (b)     The Government’s position 32.     The respondent Government submitted that it could not be verified whether the applicant had actually lived in Gulistan and had any possessions there. For the period from 1988 to the present date, the relevant departments of the Goranboy region did not possess any documentation concerning the plot of land, house or other buildings allegedly owned by the applicant. Moreover, certain archives of the former Shahumyan region, including the Civil Registry Office and the Passport Office, had been destroyed during the hostilities. No documents relating to the applicant were available in the Goranboy regional archives today. 33.     Furthermore the Government asserted that Gulistan was physically on the LoC between Azerbaijani and Armenian forces, which had been established by the cease-fire agreement of May 1994. The village was deserted and the LoC was maintained by the stationing of armed forces on either side and by the extensive use of landmines. It was thus impossible for the respondent Government to exercise any control over the area or to have any access to it. The Government relied on a number of items of evidence, including news items concerning an OSCE observer mission carried out in October 2006 on “the border line between Karabakh and Azerbaijan near village Gulistan” and a map issued by the Azerbaijani Land and Cartography Committee which shows Gulistan on the very border of the occupied area. In particular, they referred to a map of Nagorno-Karabakh submitted by the Armenian Government in the case of Chiragov and Others v. Armenia (no. 13216/05) also showing Gulistan on the very border to the “NKR”. 4.     Armenian cemeteries in Azerbaijan 34.     According to the applicant, many Armenian cemeteries in Azerbaijan have been vandalised, damaged or destroyed since 2001. In 2003 the mayor of Baku reportedly announced plans to build a major road across part of an old cemetery in Baku which, among others, contained many graves of ethnic Armenians. The graves affected by this construction would be relocated. A number of concerns were voiced about the inability of the Armenians who had fled Azerbaijan many years before to authorise and take part in the reburial of their deceased relatives. 35.     There were also reports alleging that, starting in 2002, an ancient Armenian cemetery, called Jugha cemetery, was demolished near the town of Julfa in the Nakhichevan region of Azerbaijan. 36.     No information was available to the applicant concerning the condition of the graves of his close relatives in Gulistan. B.     Relevant domestic law and practice 37.     The Government submitted that no laws have been adopted in respect of property abandoned by Armenians who left Azerbaijan due to the Nagorno-Karabh conflict. According to the Government, the following domestic law is relevant to the case: 1.     The Constitution of 1995 38.     The relevant provisions of the Constitution are the following: Article 29 “I.     Everyone has the right to own property. II.     Neither kind of property has priority. Ownership rights, including the rights of private owners, are protected by law. III.     Anyone may possess movable or real property. The right of ownership confers on owners the right to possess, use and dispose of the property himself or herself or jointly with others. IV.     Nobody shall be deprived of his or her property without a court decision. Total confiscation of property is not permitted. Transfer of property for State or public needs is permitted only on condition of prior payment of fair compensation. V.     The State guarantees succession rights.” Article 68 “I.     The rights of victims of crime or of usurpation of power are protected by law. The victim has the right to take part in the administration of justice and claim compensation for damage. II.     Everyone has the right to compensation from the State for damage incurred as a result of illegal actions or omissions of State bodies or officials.” 2.     The Civil Code 39.     Provisions of the Civil Code in force before 1 September 2000: Article 8. Application of civil legislation of other union republics in the Azerbaijan SSR “The civil legislation of other Union republics shall apply in the Azerbaijan SSR, according to the following rules: (1)     relations deriving from the right of ownership shall be governed by the law of the place where the property is situated. ... (4)     obligations arising as a result of the infliction of damage shall be subject to the law of the forum or, upon the request of the aggrieved party, the law of the place where the damage was inflicted; ...” Article 142. Recovery of property from another’s unlawful possession “The owner shall have the right to recover his property from another’s unlawful possession.” Article 144. Recovery of unlawfully transferred State, cooperative or other public property “State property or property of kolkhozes or other cooperative and public organisations that has been unlawfully transferred by any means may be recovered from any purchaser by the relevant organisations.” Article 146. Settlements on the recovery of property from unlawful possession “In recovering property from another’s unlawful possession, the owner shall have the right to claim from that person, if he knew, or should have known, that he was in unlawful possession (owner in bad faith), compensation for any income which he has derived, or should have derived, over the entire period of possession, and from a person in bona fide possession compensation for any income which he has derived, or should have derived, from the time when he learnt of the unlawfulness of the possession or received a summons from the owner claiming the return of the property.” Article 147. Protection of owner’s rights from violations not entailing deprivation of possession “The owner shall have the right to claim a remedy in respect of any violated rights, even where such violations have not entailed deprivation of possession.” Article 148. Protection of rights of persons in possession who are not owners “The rights stipulated in Articles 142-147 of the present Code shall also vest in a person who, even though he is not the owner, is in possession of the property in accordance with the law or a contract.” Article 571-3. Law applicable to the right of ownership “The right of ownership of the property in question shall be determined in accordance with the law of the country in which it is situated. Subject to any contrary provision of the legislation of the USSR and the Azerbaijan SSR, a right of ownership of the property in question shall be created or terminated in accordance with the law of the country in which the property was situated when an action or other circumstance took place which served as a basis for the creation or termination of the right of ownership.” Article 571-4. Law applicable to obligations created following the infliction of damage “The rights and duties of the parties in respect of obligations deriving from the infliction of damage shall be determined in accordance with the law of the country where an action or other circumstance took place which served as a basis for claims for compensation for loss.” 40.     Provisions of the Civil Code in force from 1 September 2000: Article 21. Compensation of Losses “21.1     A person entitled to claim full recovery of losses may claim full recovery of losses inflicted on him, unless a smaller amount has been stipulated by the law or by the contract. 21.2     By losses shall be understood the expenses which the person whose right has been violated has incurred or will have to incur in order to restore the violated right, the loss or the damage done to his property (the compensatory damage), and the unreceived profits which he or she would have gained under the ordinary conditions of the civil transactions if the right had not been violated (the missed profit).” Article 1100. Responsibility for losses caused by State bodies, local self-government bodies or their officials “Losses inflicted upon an individual or legal entity as a result of illegal actions or omissions on the part of State bodies, local self-government bodies or their officials, including the adoption by the State body or the local self-government body of an unlawful measure, shall be liable to compensation by the Republic of Azerbaijan or by the relevant municipality.” 3.     The Code of Civil Procedure 41.     Provisions of the Code of Civil Procedure in force before 1 June 2000: Article 118. Lodging of claims at the defendant’s place of residence “Claims shall be lodged with the court at the defendant’s place of residence. Claims against a legal entity shall be lodged at its address or at the address of property belonging to it.” Article 119. Jurisdiction of the claimant’s choice “... Claims for compensation for damage inflicted upon the property of a citizen or legal entity may also be lodged at the place where the damage was inflicted.” 42.     Provisions of the Code of Civil Procedure in force from 1 June 2000: Article 8. Equality of all before the law and courts “8.1     Justice in respect of civil cases and economic disputes shall be carried out in accordance with the principle of equality of all before the law and courts. 8.2     Courts shall adopt an identical approach towards all persons participating in the case irrespective of race, religion, gender, origin, property status, business position, beliefs, membership of political parties, trade unions and other social associations, place of location, subordination, type of ownership, or any other grounds not specified by the legislation.” Article 307. Cases concerning the establishment of facts of legal significance “307.1     The court shall establish the facts on which the origin, change or termination of the personal and property rights of physical and legal persons depend. 307.2     The court shall hear cases relating to the establishment of the following facts: ... 307.2.6     in respect of the right of ownership the fact of possession, use or disposal of immovable property ...” Article 309. Lodging of application “309.1     Applications concerning the establishment of facts of legal significance shall be lodged with the court at the applicant’s place of residence. 309.2     In respect of the right of ownership, applications concerning the establishment of the fact of possession, use or disposal of immovable property shall be lodged with the court at the place where the immovable property is situated.” Article 443. Jurisdiction of the courts of the Azerbaijan Republic relating to cases with the participation of foreigners “443.0     The courts of the Azerbaijan Republic shall have the right to hear the following cases with the participation of foreigners: ... 443.0.6     where, in cases relating to compensation for losses for damage inflicted on property, the action or other circumstance serving as the ground for lodging the claim for compensation of losses has occurred on the territory of the Azerbaijan Republic.” C.     Declaration made by the respondent Government upon ratification of the Convention 43.     The instrument of ratification deposited by the Republic of Azerbaijan on 15 April 2002 contains the following declaration: “The Republic of Azerbaijan declares that it is unable to guarantee the application of the provisions of the Convention in the territories occupied by the Republic of Armenia until these territories are liberated from that occupation.” D.     Armenia’s and Azerbaijan’s joint undertaking in respect of the settlement of the Nagorno-Karabakh conflict 44.     Prior to their accession to the Council of Europe, Armenia and Azerbaijan gave undertakings to the Committee of Ministers and the Parliamentary Assembly committing themselves to the peaceful settlement of the Nagorno-Karabakh conflict (see Parliamentary Assembly Opinions 221 (2000) and 222 (2000) and Committee of Ministers Resolutions Res (2000)13 and (2000)14). The relevant paragraphs of Parliamentary Assembly Opinion 222 (2000) on Azerbaijan’s application for membership of the Council of Europe read as follows: “11.     The Assembly takes note of the letter from the President of Azerbaijan reiterating his country’s commitment to a peaceful settlement of the Nagorno-Karabakh conflict and stressing that Azerbaijan’s accession to the Council of Europe would be a major contribution to the negotiations process and stability in the region. ... 14.     The Parliamentary Assembly takes note of the letters from the President of Azerbaijan, the speaker of the parliament, the Prime Minister and the chairmen of the political parties represented in Parliament, and notes that Azerbaijan undertakes to honour the following commitments: ... ii.     as regards the resolution of the Nagorno-Karabakh conflict: a.     to continue efforts to settle the conflict by peaceful means only; b.     to settle international and domestic disputes by peaceful means and according to the principles of international law (an obligation incumbent on all Council of Europe member states) resolutely rejecting any threatened use of force against its neighbours;” Resolution Res (2000)14 by the Committee of Ministers concerning the invitation to Azerbaijan to become a member of the Council of Europe refers to the commitments entered into by Azerbaijan, as set out in Opinion 222 (2000) and the assurances for their fulfilment given by the Government of Azerbaijan. COMPLAINTS 45.     The applicant complained under Article 1 of Protocol No. 1 that his eviction from his property constituted a violation of his right to the peaceful enjoyment of his possessions. He maintained that he remained the rightful owner of the house and was unaware of any decisions of the Azerbaijani authorities annulling his rights to the property left behind in Azerbaijan. 46.     The applicant complained under Article 8 of the Convention that his rights to respect for private and family life and his home had been violated as a result of his forced displacement and the continuing refusal of the respondent Government to allow him access to his home and belongings. He complained, further, that the respondent Government had not complied with their positive obligations to protect his rights under Article 8. 47.     Relying on Articles 3, 8 and 9 of the Convention, the applicant referred to the reports concerning the alleged demolition or vandalism of Armenian cemeteries in Azerbaijan. He submitted that he did not know what had happened to the graves of his close relatives and that he was deprived of the possibility of visiting their graves, which was something he had done regularly in the past. The mere fact of knowing that the graves of his relatives were at risk of being destroyed caused him severe suffering and distress. The inability to visit the cemetery violated his right to respect for private and family life and deprived him of spiritual communication with his dead relatives, visiting and maintenance of cemeteries being one of the religious customs that the applicant had followed. 48.     The applicant complained under Article 13 of the Convention, in conjunction with his other complaints, that there were no effective remedies available to ethnic Armenians who had been forced to leave their homes in Azerbaijan. The applicant claimed that “the majority of ethnic Armenians” had attempted to lodge complaints with the relevant Azerbaijani authorities, but were unable to obtain any redress for violations of their rights. In general, due to the unresolved conflict in Nagorno ‑ Karabakh, there existed practical difficulties and obstacles to gaining direct access to any remedies available in Azerbaijan. 49.     The applicant complained under Article 14 of the Convention, in conjunction with his other complaints, that he had been subjected to discrimination on the basis of his ethnic and religious affiliation. He submitted that only ethnic Armenians living in Azerbaijan had been the target of violence, pogroms and attacks. The respondent Government had failed to investigate acts of violence against Armenians and to provide redress for illegal occupation of their properties and destruction of Armenian cemeteries. THE LAW I.     PRELIMINARY ISSUES 50.     The Court notes at the outset that the applicant died after the present application was lodged. Moreover, in their written and oral submissions the respondent Government have raised a number of objections to the admissibility of the application. The Court will examine these issues in the following order: -   pursuance of the application; -   jurisdiction and responsibility of the respondent State; -   the Court’s jurisdiction ratione temporis ; -   the applicant’s victim status in respect of the alleged destruction of Armenian graves in Azerbaijan; -   exhaustion of domestic remedies; -   compliance with the six-month rule. A.     The right of the applicant’s widow and children to pursue the application 51.     Ms Lena Sargsyan, the applicant’s widow and their children, Vladimir, Tsovinar and Nina Sargsyan have expressed their wish to continue the proceedings before the Court. It has not been disputed that they are entitled to pursue the application on the applicant’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.     Jurisdiction and responsibility of the respondent State 1.     The parties’ submissions (a)     The respondent Government 52.     Firstly, the Government referred to the declaration contained in the instrument of ratification of 15 April 2002. They observed that unlike a number of explicit reservations made by the Republic of Azerbaijan to particular Articles of the Convention, the declaration was not termed a “reservation” and was not made pursuant to Article 57 of the Convention. Its purpose was to remind all State parties that a significant part of the internationally recognised territory of Azerbaijan was occupied and that Azerbaijan was therefore unable to guarantee the application of the Convention rights in the “territories occupied by the Republic of Armenia”. 53.     Secondly, while accepting that Gulistan was on the internationally recognised territory of the Republic of Azerbaijan, the Government argued that the presumption of jurisdiction in respect of a State’s territory could be rebutted in exceptional circumstances where the State was prevented from exercising its authority in part of its territory, for instance on account of military occupation by the armed forces of another State which effectively controlled the territory concerned ( Ilaşcu and Others v. Moldova and Russia [GC], no.   48787/99, § 312, ECHR 2004-VII). 54.     In the Government’s view the presumption of jurisdiction was rebutted in the present case. They asserted in their written submissions and maintained at the hearing that Gulistan was on the LoC between Azerbaijani and Armenian armed forces. The LoC had been established by the cease-fire agreement in 1994 and has not changed since. They submitted a letter by the Director of Azerbaijan’s National Agency for Mine Action, according to whom the area of Gulistan was defined as an area with extensive mine and unexploded ordinance contamination with no safe access. Due to the fact that the area was heavily mined, Azerbaijan had no access to and was unable to exercise any control over the village. Opposing military forces were stationed on either side of the village and violations of the cease-fire agreement had occurred and continued to occur frequently. Azerbaijan could therefore not be held responsible for the alleged violations of the Convention. (b)     The applicant 55.     The applicant argued that the declaration was not applicable to the facts of the case as it was not established that the territory in question was “occupied by the Republic of Armenia”. In any case, the declaration fell foul of the terms of Article 57 of the Convention, as a reservation shall not be of a general character and shall not contain territorial exclusions. Consequently, the declaration was invalid. 56.     As his primary position, the applicant submitted that Gulistan was part of the internationally recognised territory of the Republic of Azerbaijan and that the onus was on the respondent Government to rebut the presumption of jurisdiction in relation to the area of Gulistan for the period since 15 April 2002. In the applicant’s view the respondent Government have failed to adduce such proof. 57.     Alternatively the applicant asserted, that even if it were established that Azerbaijan lacked control over the area at issue, its responsibility would nevertheless be engaged as a result of its positive obligations under the Convention (see Ilaşcu and Others , cited above, §§ 310-313). Regarding the nature and extent of positive 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 (Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, 28 June 2005, E/CN.4/Sub.2/2005/17, Annex) . In the applicant’s contention the Government have failed to meet their positive obligations in that, for many years, they displayed a lack of political will to settle the conflict. (c)     The Armenian Government, third-party intervener 58.     The third party Government submitted that the respondent Government had full, effective control over Gulistan. At the hearing the Armenian Government contested the respondent Government’s assertion that Gulistan was on the LoC. They referred to the written statement of 11   August 2010 by an anonymous senior officer of the “NKR” armed forces serving near Gulistan, which had been submitted by the applicant. The Agent of the Armenian Government declared that he was personally present when the statement was made and confirmed its correctness. On the basis of this statement the Armenian Government asserted that, in the area at issue, the dividing line between the armed forces of “NKR” and the Republic of Azerbaijan was a gorge through which the river Indzachay was flowing. Gulistan was situated north of the riverside and was under the control of Azerbaijani armed forces who had military positions in the village and on its outskirts, while “NKR” forces were stationed on the other side of the gorge. They also referred to a video of the village submitted to the Court by the applicant in 2008 claiming that the person who can be seen walking between the houses, was an Azerbaijani soldier. The Armenian Government maintained that it was impossible for “NKR” forces or any Armenian to have access to the village. 2.     The Court’s assessment 59.     Article 1 of the Convention provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” The Court has to examine whether the matters complained of come within the jurisdiction and responsibility of the respondent Government. (a)     The respondent Government’s declaration 60.     The Court observes that the Republic of Azerbaijan ratified the Convention with effect throughout the whole of its territory. However, it deposited a declaration (see paragraph 43 above) with its instrument of ratification. 61.     Referring to that declaration, the respondent Government argue that their responsibility under Article 1 of the Convention is engaged only in respect of those parts of its territory over which the Republic of Azerbaijan exercises control. 62.     The Court notes at the outset that it is in dispute between the parties whether the village at issue is located in the “occupied territories” within the meaning of the declaration. However, the Court does not consider it necessary to answer this question of fact at the present stage, as the question whether the respondent Government can rely on the declaration can be resolved on the basis of the legal considerations set out below. The Court would therefore underline that these considerations do not prejudg