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CASE OF CHIRAGOV AND OTHERS v. ARMENIA
(Application no. 13216/05)
16 June 2015
This judgment is final but may be subject to editorial revision.
CHIRAGOV AND OTHERS v. ARMENIA JUDGMENT (MERITS) 1In the case of Chiragov and Others v. Armenia, The European Court of Human Rights, sitting as a Grand Chamber
Dean Spielmann, President, Josep Casadevall, Guido Raimondi, Mark Villiger, Isabelle Berro, Ineta Ziemele, Boštjan M. Zupančič, Alvina Gyulumyan, Khanlar Hajiyev, George Nicolaou, Luis López Guerra, Ganna Yudkivska, Paulo Pinto de Albuquerque, Ksenija Turković, Egidijus Kūris, Robert Spano, Iulia Antoanella Motoc, judges, and Michael O’Boyle, Deputy Registrar, Having deliberated in private on 22-23 January 2014 and 22 January 2015, Delivers the following judgment, which was adopted on the
1. The case originated in an application (no. 13216/05) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six Azerbaijani nationals, Mr Elkhan Chiragov, Mr Adishirin Chiragov, Mr Ramiz Gebrayilov, Mr Akif Hasanof, Mr Fekhreddin Pashayev and Mr Qaraca Gabrayilov (“the applicants”), on 6 April 2005. The sixth applicant died in June 2005. The application was pursued on his behalf by his son, Mr Sagatel Gabrayilov.
2. The applicants, who had been granted legal aid, were represented by Mr M. Muller QC, Ms C. Vine, Ms M. Butler, Mr M. Ivers, Ms B. Poynor and Mr S. Swaroop, lawyers practising in London, as well as Mr K. Yıldız.
The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia before the Court.
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3. The applicants alleged, in particular, that they were prevented from returning to the district of Lachin in territory occupied by the respondent Government, that they were thus unable to enjoy their property and homes located there and that they had not received any compensation for their losses. They submitted that this amounted to continuing violations of Article 1 of Protocol No. 1 to the Convention and of Article 8 of the Convention. Moreover, they alleged a violation of Article 13 of the Convention in that no effective remedy was available in respect of the above complaints. Finally, they claimed, with a view to all complaints set out above, that they were subjected to discrimination by virtue of ethnic origin and religious affiliation in violation of Article 14 of the Convention.
4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). The Azerbaijani Government made use of their right to intervene under Article 36 § 1 of the Convention. They were represented by their Agent, Mr. C. Asgarov.
5. On 9 March 2010 a Chamber of the Third Section, composed of judges Josep Casadevall, Elisabet Fura, Corneliu Bîrsan, Boštjan M. Zupančič, Alvina Gyulumyan, Egbert Myjer and Luis López Guerra, and also of Stanley Naismith, Deputy Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).
6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. The President of the Court decided that, in the interests of the proper administration of justice, the present case and the case of Sargsyan v. Azerbaijan (application no. 40167/06) should be assigned to the same composition of the Grand Chamber (Rules 24, 42 § 2 and 71).
7. A hearing on the admissibility and merits of the application took place in public in the Human Rights Building, Strasbourg, on 15 September 2010 (Rule 59 § 3).
8. On 14 December 2011 the application was declared admissible by a Grand Chamber consisting of judges Nicolas Bratza, 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 and Luis López Guerra, and also of Michael O’Boyle, Deputy Registrar.
9. The applicants and the respondent Government each filed further written observations (Rule 59 § 1) on the merits. In addition, third-party comments were received from the Azerbaijani Government.
10. A hearing on the merits took place in public in the Human Rights Building, Strasbourg, on 22 January 2014.
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There appeared before the Court:
The applicants A. Hasanof and F. Pashayev were also present.
The Court heard addresses by Mr Muller, Mr Swaroop, Mr Ivers, Ms Butler, Mr Robertson, Mr Shaw and Mr Lansky.
11. Following the hearing, the Court decided that the examination of the case did not require it to undertake a fact-finding mission or to conduct a hearing of witnesses.
I. THE CIRCUMSTANCES OF THE CASEA. Background
12. At the time of the demise of the USSR, the Nagorno-Karabakh Autonomous Oblast (“the NKAO”) was an autonomous province of the
4 CHIRAGOV AND OTHERS v. ARMENIA JUDGMENT (MERITS)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 (known as Artsakh by its Armenian name) 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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
CHIRAGOV AND OTHERS v. ARMENIA JUDGMENT (MERITS) 5declared 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 NagornoKarabakh on 10 December, 99.9% of those participating 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.
18. In early 1992 the conflict gradually escalated into full-scale war. The ethnic Armenians conquered several Azeri villages, leading to at least several hundred deaths and the departure of the population.
19. The district of Lachin, in particular the town of Lachin, was attacked many times. The applicants claimed that the attacks were made by troops of both Nagorno-Karabakh and the Republic of Armenia. The respondent Government maintained, however, that Armenia did not participate in the events, but that military action was carried out by the defence forces 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.
20. 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.
21. In July 1992 the Armenian parliament decreed that it would not sign any international agreement stipulating that Nagorno-Karabakh remain a part of Azerbaijan.
22. 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.
23. 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).
24. 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.
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25. 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.
B. Current situation
26. 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.
27. 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.
28. 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 international organisation. Recurring breaches of the 1994 ceasefire agreement along the borders have led to the loss of many lives and the rhetoric of officials remains hostile. Moreover, according to international reports, tension has heightened in recent years and military expenditure in Armenia and Azerbaijan has increased significantly.
29. Several proposals for a peaceful solution of the conflict have failed.