CEDH · CASELAW;CLIN;ENG — 14 décembre 2011

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 147 December 2011 Sargsyan v. Azerbaijan (dec.) [GC] - 40167/06 Decision 14.12.2011 [GC] Article 35 Article 35-1 Six month period Preliminary objection that application concerning alleged property rights of displaced persons had been lodged out of time: preliminary objection dismissed Article 1 of Protocol No. 1 Alleged loss of homes and possessions by persons fleeing Nagorno-Karabakh conflict: admissible [This summary also covers the Grand Chamber decision in the case of Chiragov and Others v.   Armenia , no. 13216/05, 14 December 2011] Facts – These two cases concern individuals who allegedly lost their homes and possessions when fleeing the fighting during the conflict in the Nagorno-Karabakh region in 1992. Under the Soviet system of territorial administration, Nagorno-Karabakh was an autonomous province of the Azerbaijan Soviet Socialist Republic. Its population was approximately 75% ethnic Armenian and 25% ethnic Azeri. Armed hostilities started in 1988, coinciding with an Armenian demand for the incorporation of the province into Armenia. Azerbaijan became independent in 1991. In September 1991 the Nagorno-Karabakh Soviet announced the establishment of the “Nagorno-Karabakh Republic” (the “NKR”) and in January 1992 the “NKR” parliament declared independence from Azerbaijan. The conflict gradually escalated into full-scale war before a ceasefire was agreed in 1994. Despite negotiations for a peaceful solution under the auspices of the Organization for Security and Co-operation in Europe (OSCE) and the Minsk Group, no political settlement of the conflict has been reached. The self-proclaimed independence of the “NKR” has not been recognised by any State or international organisation. The applicants in the case of Chiragov and Others v. Armenia are Azerbaijani nationals of Kurdish origin who, until 1992, lived in the district of Lachin, which is located between Nagorno-Karabakh and the Republic of Armenia. Its population was largely composed of Azeris and Kurds. The applicants allege that they were forced by the escalating military conflict to flee to Baku (Azerbaijan) in 1992 and have been unable to return as Lachin is under the effective control of Armenia. They further allege that they have lost all control over their properties and homes and have been victims of discrimination as a result of their ethnic origin and religious affiliation. The applicant in the case of Sargysan v. Azerbaijan has died since lodging his application and is now represented by his widow and children. He was an ethnic Armenian who, until 1992, lived in a village in the Shahumyan district in what was formerly the Azerbaijan Soviet Socialist Republic on the northern border of Nagorno-Karabakh. Shahumyan was included in the territory claimed by the “NKR” when it declared independence from Azerbaijan in January 1992 and according to the applicant, 82% of the population of Shahumyan at the time were ethnic Armenians like himself. In his application to the European Court, the applicant alleged that he and his family were forced to flee their home and move to Armenia after their village was bombed by Azerbaijani forces in 1992. He complained of his forced displacement and subsequent inability to use his home and property and visit his relatives’ graves. He also complained of discrimination on the basis of his ethnic origin and religious affiliation. Law – In both cases the respondent Governments raised a series of preliminary objections to the applicants’ complaints. The Court joined to the merits the Governments’ objections that the properties concerned were not within their “jurisdiction” for the purposes of Article   1 of the Convention, that the applicants had not shown that they were “victims” of some or all of the alleged violations for the purposes of Article   34, and that they had failed to exhaust domestic remedies within the meaning of Article 35 §   1. As regards the remaining objections, the Court found as follows: (a)     Article 35 § 3 (a) ( temporal jurisdiction ): While the applicants’ displacement in 1992 in the context of an armed conflict was to be considered as resulting from an instantaneous act falling outside the Court’s competence ratione temporis , their ensuing lack of access to their alleged property and homes was to be considered as a continuing situation, which the Court had had competence to examine since 2002 when both respondent States ratified the Convention. Conclusion : preliminary objection dismissed (majority). (b)     Article 35 § 1 ( six-month time-limit ): The respondent Governments submitted that the applications had been lodged out of time as they had not been lodged within six months after the dates the respondent States had ratified the Convention or, in the alternative, “without undue delay” after such ratification. The Court observed that in the case of Varnava and Others v. Turkey * it had not laid down the application of a strict six-month time-limit for disappearance cases, let alone for continuing situations (such as in the present cases) in general. However, in the interests of legal certainty, it had imposed a duty of diligence and initiative on applicants and an applicant who failed to comply with that duty ran the risk that his or her application would be rejected as being out of time. While there were important differences between Varnava -type cases concerning the failure to investigate disappearances and the applicants’ cases, which concerned the denial of access to properties and homes, there were also similarities. Both types of case concerned complaints about continuing violations in a complex post-conflict situation affecting large groups of persons. In such situations there would often be no adequate domestic remedies, or if there were, their accessibility or functioning might be hampered by practical difficulties. It could therefore be reasonable for applicants in such situations to await the outcome of political processes such as peace talks and negotiations that might offer the only realistic hope of a solution. Nevertheless, applicants should not remain passive in the face of an unchanging situation indefinitely: once they were aware or should have been aware that there was no realistic hope of regaining access to their property and home in the foreseeable future, unexplained or excessive delay in lodging an application could lead to its rejection. While the Court did not consider it appropriate to indicate general time-frames in such cases, it accepted that in complex post-conflict situations time-frames had to be generous in order to allow the situation to settle and to permit applicants to collect comprehensive information on the chances of obtaining a solution domestically. The earliest time the applicants in the instant cases could have applied to the Court had been on ratification by the respondent States in 2002. However, in the context of their accession to the Council of Europe, Armenia and Azerbaijan had given a joint undertaking to seek a peaceful settlement of the Nagorno-Karabakh conflict and a period of intensified contacts and negotiations had followed, so that the applicants could for some time have reasonably expected that a solution to the conflict would eventually be achieved. Furthermore, their personal situations also had to be taken into account and, as displaced persons, they were members of a particularly underprivileged and vulnerable population. The applicants in the Chiragov and Others case had applied to the Court about three years after Armenian ratification of the Convention. Mr   Sargysan had lodged his application some four years and four months after Azerbaijan ratified the Convention. In these circumstances, the Court considered that the applicants had acted without undue delay and that their applications were not out of time. Conclusion : preliminary objection dismissed (majority). In the case of Chiragov and Others the Court also dismissed by a majority an objection by the Armenian Government under Article 35 §   2   (b) that the application was substantially the same as the matter submitted to the OSCE. Noting that the applicants were not parties to the interstate talks conducted within the OSCE and that that body had no power to examine whether the applicants’ individual rights had been violated, the Court found that the OSCE proceedings did not constitute a “procedure of international investigation or settlement” of the matters which were the subject of the present application**. In the Sargsyan case the Court dismissed unanimously an objection by the Azerbaijani Government that a declaration Azerbaijan had deposited with its instrument of ratification in 2002 had made it clear that it was unable to guarantee the application of the Convention in the territories occupied by the Republic of Armenia. In line with its decisions in previous cases*** the Court held that the declaration was not capable of restricting the territorial application of the Convention to certain parts of the internationally recognised territory of the Republic of Azerbaijan. Nor could it be equated with a reservation complying with the requirements of Article 57 of the Convention as that provision did not allow for “reservations of a general character”. The declaration by Azerbaijan did not refer to any particular provision of the Convention or specific law in force in Azerbaijan, but was of general scope whose effect would be that persons on the territories concerned would be wholly deprived of the protection of the Convention for an indefinite period. It was, therefore, invalid. -ooOoo- The applications in both cases were declared admissible under Articles   8, 13, 14 of the Convention and Article   1 of Protocol No.   1. * Varnava and Others v. Turkey [GC], nos.   16064/90 et al, 18   September 2009, Information Note   122. ** See also OAO Neftyanaya Kompaniya Yukos v. Russia , no.   14902/04, 20   September 2011, Information Note   144. *** Ilaşcu And Others v. Moldova and Russia   (dec.) [GC], no.   48787/99, 4   July 2001, and Loizidou v. Turkey (preliminary objections), no.   15318/89, 23   March 1995.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes