Sargsyan and Chiragov: The Strasbourg Court takes aim at frozen conflicts?

by Rhodri C. Williams

Last week I joined Philip Leach of the European Human Rights Advocacy Centre (EHRAC) in Strasbourg to present the European Court of Human Rights’ June 2015 judgments in two cases related to the Nagorno-Karabakh conflict to government representatives at the Council of Europe, at a briefing event organised by the European Implementation Network and the Open Society Justice Initiative.

The cases were Sargsyan v Azerbaijan and Chiragov v. Armenia, which were effectively joined by being relinquished from their original chambers to the same composition of the Grand Chamber in 2010. Both judgments found continuing violations of the applicants’ rights to property and their homes (as well as an effective remedy) based on their displacement in the early 1990s and subsequent inability to return to or access their properties.

While not (yet) signaling the initiation of a pilot judgment procedure, the court notes that the cases typify repetitive claims resulting from the respondent states’ failure to peacefully resolve the Nagorno-Karabakh conflict, reiterate the “primordial” importance of subsidiarity to the functioning of the Convention system, and recommend that both states take immediate steps to address property claims on their own steam:

…it would appear particularly important to establish a property claims mechanism, which should be easily accessible and provide procedures operating with flexible evidentiary standards, allowing the applicant and others in his situation to have their property rights restored and to obtain compensation for the loss of their enjoyment. (Sargsyan, para. 238, Chiragov, para. 199)

Taken together, the judgments represent intriguing developments at a number of levels. In terms of the general evolution of the Court’s jurisprudence, Marko Milovanovic makes a number of interesting observations (here in EJILTalk) regarding the structure of the cases (as both pre-pilot judgments and interstate cases by proxy), as well as the Court’s findings related to exhaustion of domestic remedies, extra-territorial jurisdiction and the relationship between jurisdiction and control (he also notes separately how the Court may have inadvertently waded into the debate over the status of the Gaza Strip).

Perhaps most interestingly, Marko points out that both the “very relaxed” approach to exhaustion and the “remarkable” ease with which the Sargsyan Court finds Armenia to have exercised effective control over Nagorno Karabakh appear to presage a willingness to tackle Europe’s numerous frozen conflicts head on. On exhaustion, for instance:

The flexible attitude that the Court has shown … has clear implications for other similar (and also politically very controversial) cases currently pending before it, including interstate cases between Georgia and Russia and Ukraine and Russia, and many individual applications brought against these states with regard to the relevant conflicts. It now seems significantly less likely that the Court will use non-exhaustion as a vehicle for avoiding to deal with such cases. Accordingly, many, if not most of them will proceed to the merits.

All of this implies that the Court’s 2010 decision in Demopoulos v. Turkey may have been the opening shot of a jurisprudence on frozen conflicts based on the philosophy that the best defense is a good offense. Rather than allowing property complaints to pile up and issuing occasional judgments effectively demanding rent for denied access in favor of displaced owners, the Court has positioned itself to begin consistently demanding systemic remedies. All of which may herald a new jurisprudence of not passively allowing indefinitely frozen conflicts to result in indefinitely continuing property violations.

At the regional level, implementation of the judgments will be complicated by the recent “four day war” in April, in which violence reignited over Nagorno Karabakh. EHRAC represented the applicants in Sargsyan, and noted in its press release on the day the judgments were released they coincided with both the first European Games, held in Baku, and the publication of a new report on internal displacement in Azerbaijan by Chaloka Beyani, UN Special Rapporteur on the human rights of IDPs.

A quick perusal of Mr. Beyani’s report indicates that the issue of durable solutions to protracted displacement in the region remain no less politically charged for the passage of time, an observation also made earlier on this blog by Yuliya Aliyeva. And yet, as Philip Leach noted in a July 2015 commentary, the legal force of the Court’s judgments not only introduce a new element to the long running peace talks led by the OSCE “Minsk Group” but also a new actor, in the form of the Council of Europe:

…as a result of the judgments, a new player now has a role in the resolution process, namely the Council of Europe, which is in a position to pursue the interests of the individual victims of the conflict, independently of the political machinations inherent in the OSCE Minsk Group negotiations. Using the two Grand Chamber judgments as (legally binding) pressure points, Council of Europe states have a significant and timely opportunity, through the Committee of Ministers’ implementation process, to exert a level of influence which could be decisive.

Finally, at the level of post-conflict housing, land and property (HLP) rights, the judgments represent an intriguing effort to clarify, consolidate and come to grips with a long line of cases in which the Court has not always seemed entirely enthusiastic about cleaning up the mess left in the wake of Europe’s post-1989 resurgence of nationalist conflict. I intend to write more on this soon, but will begin with a reprint of my and Philip’s presentation, also available from EHRAC here:

Sargsyan v Azerbaijan & Chiragov and others v Armenia

Two Grand Chamber judgments delivered on 16 June 2015 (Sargsyan v Azerbaijanand Chiragov and others v Armenia) upheld the European Convention rights of families displaced by the Nagorno-Karabakh conflict in the early 1990s, a conflict that created hundreds of thousands of refugees and internally-displaced persons (IDPs) on both sides, and which has remained unresolved in the ensuing decades. Peace negotiations have been held under the auspices of the OSCE ‘Minsk Group’(co-chaired by France, Russia and the United States), but as the judgments make clear, settlement negotiations have repeatedly failed.

The circumstances – and the Court’s findings

Minas Sargsyan and his family, ethnic Armenians, lived in the village of Gulistan just north of the Nagorno-Karabakh region, but within the internationally-recognised territory of Azerbaijan. In June 1992 the village was heavily bombed by Azerbaijani forces, and the villagers fled for their lives. The Sargsyans resettled as refugees in Armenia. The applicants in the Chiragov case were Azerbaijani Kurds living in the Lachin region which came under repeated attack and they too fled, in May 1992, shortly before the town of Lachin was captured by forces of Armenian ethnicity. They were subsequently not able to return to the region and therefore lived as IDPs elsewhere in Azerbaijan.

In both cases the applicants’ complaints about the loss of their homes, land and property were upheld, with the Court finding continuing violations of their rights under Article 1 of Protocol No. 1 (the peaceful enjoyment of property), Article 8 (the right to respect for private and family life and home) and Article 13 (the right to an effective remedy).[1]


The Chiragov case concerned the extra-territorial reach of the Convention (did Armenia have jurisdiction over events occurring within the territory of Nagorno-Karabakh?), whereas in Sargsyan the key question was whether Azerbaijan was still considered to exercise jurisdiction over a part of its own territory over which it claimed to have lost control.  

At issue in Chiragov was whether Armenia exercised ‘effective control’ over Nagorno-Karabakh and the surrounding territories. On the available evidence, the Court found it established that Armenia had been significantly involved in the Nagorno-Karabakh conflict from an early date, as a result of its military presence and the provision of military equipment and expertise. Such support “has been – and continues to be – decisive for the conquest of and continued control over the territories in issue” (para. 180). Furthermore, taking account of the close political links, and other provision of support, the Court found that Armenia and the ‘Nagorno-Karabakh Republic’ were “highly integrated in virtually all important matters” (para 186).

In the Sargsyan case, the location and status of the village of Gulistan, where the Sargsyan family had lived, was highly contested – notably as to its proximity to the two states’ military positions. On the available evidence, the Court found that it was not established that Azerbaijani forces were (or had been) present in Gulistan; however, there was also no evidence that the ‘Nagorno-Karabakh Republic’ had positions or troops in the village. The Grand Chamber therefore concluded that as the village was situated in the internationally recognised territory of Azerbaijan, a presumption of jurisdiction applied. A limitation of a state’s responsibility had only previously been accepted in respect of areas where another state or separatist regime exercised effective control, and the Court rejected the Azerbaijani Government’s argument that this should be extended to disputed zones, or “areas which are rendered inaccessible by the circumstances” (para. 123).

Inadequacy of the peace negotiations

It was a central feature of both judgments that the Court made clear its view of the inadequacy of both states’ stances towards the settlement negotiations. For example, in Sargsyan, it underlined that:

“…. it is the responsibility of the two States involved in the conflict to find a political settlement of the conflict…. Comprehensive solutions to such questions as the return of refugees to their former places of residence, re-possession of their property and/or payment of compensation can only be achieved through a peace agreement. Indeed, prior to their accession to the Council of Europe, Armenia and Azerbaijan gave undertakings to resolve the Nagorno‑Karabakh conflict through peaceful means…Although negotiations have been conducted in the framework of the OSCE Minsk Group, more than twenty years have gone by since the ceasefire agreement in May 1994…without a political solution being yet in sight. As recently as June 2013 the Presidents of the Co-Chair countries of the Minsk Group…have expressed their ‘deep regret that, rather than trying to find a solution based upon mutual interests, the parties have continued to seek one-sided advantage in the negotiation process’” … (Sargsyan, para. 216)

Call for a property claims mechanism

The mere fact that peace negotiations were on-going did not absolve the two Governments from taking other measures, especially when negotiations had been pending for such a long time, without leading to tangible results. In both cases, the Court directed the Governments’ attention towards international standards on property rights (notably the UN Pinheiro Principles), concluding:

“…it would appear particularly important to establish a property claims mechanism, which should be easily accessible and provide procedures operating with flexible evidentiary standards, allowing the applicant and others in his situation to have their property rights restored and to obtain compensation for the loss of their enjoyment.”(Sargsyan, para. 238, Chiragov, para. 199)

Precedents for Court-ordered claims mechanisms

There is a precedent in the context of another long-standing and intense political dispute – property claims in northern Cyprus. In its 2005 judgment in Xenides-Arestis v Turkey, the Court directed the Turkish Government to introduce a mechanism of redress for property claims within three months, which led to the establishment of the Immovable Property Commission (IPC) (whose composition included a former Secretary General and Deputy Secretary General of the Council of Europe). Subsequently, in its decision in 2010 in Demopoulos and others v Turkey, the Grand Chamber found that the IPC provided an accessible and effective framework of redress.

Elsewhere, the Court made a creative, and ultimately successful, contribution to resolving large-scale property claims in Poland, stretching back to the aftermath of the Second World War (Broniowski v. Poland). It has also directed a number of states (albeit with mixed results) to introduce mechanisms to redress mass property claims: examples include Romania, Albania and Italy.

Furthermore, the Court can be increasingly prescriptive in such contexts, for example, directing states to take measures in order to prevent the unlawful occupation of immovable property (Sarica and Dilaver v. Turkey) and stipulating factors to be taken into account in calculating compensation for expropriated property (Yetiş and others v Turkey). In the current cases, the Court has referred explicitly not only to international guidance such as the Pinheiro Principlesadopted by the UN Human Rights Sub-Commission in 2005, but also regional standards such as the Poulsen Principles adopted by the Parliamentary Assembly of the Council of Europe in 2010.

Property claims and the right to return

In both Sargsyan and Chiragov, the Court takes note of the 2007 Madrid Basic Principles developed by the OSCE Minsk Group for resolution of the Nagorno-Karabakh conflict, which stipulate “the right of all internally displaced persons and refugees to return to their former places of residence” (Sargsyan, para. 236), as well as standards such as the Pinheiro Principles that assert this right, and the determination by the International Committee of the Red Cross of its existence as a matter of customary international humanitarian law.

However, the Court does not order measures to directly facilitate the return of the applicants. In Sargsyan, the Court found that it was justifiable on grounds of safety to refuse former residents access to the village of Gulistan, which remains situated in an area of military activity (para. 233). In finding an interference with the applicants’ property rights in Chiragov, the Court makes the general observation that “it is not realistic, let alone possible, in practice for Azerbaijanis to return to these territories in the circumstances which have prevailed throughout this period…” (para. 195).

Nevertheless, in such a situation, both states still had a duty to take ‘alternative measures’ in order to secure property rights, satisfying an essential precondition for the eventual return of the displaced (Sargsyan, para. 234, cf: “other measures”,Chiragov, para. 198). Such property measures can be taken in advance of the actual return of displaced persons, whereas return cannot take place in the absence of mechanisms to secure property rights. As a result, the Court’s decision allows the more politically-loaded question of return to remain a part of the ongoing negotiation process, while requiring the state parties to focus on technical measures related to property, which not only lay the ground for eventual return but may also have the potential to build confidence between them. However, it is important to note that the question of how a property claims mechanism is formulated is not entirely divorced from the question of return.

In its 2010 decision in Demopoulos and others v. Turkey, the Court implied that some restrictions may be placed on return, albeit in the context of a comprehensive, negotiated peace settlement that included mechanisms to safeguard the human rights of all affected parties. In a lengthy description of the return and property provisions of the UN’s 2004 ‘Annan Plan’ for the unification of Cyprus, the Court noted that it “had provided for the property rights of Greek Cypriots to be balanced against the rights of those now living in the homes or using the land”, in effect by limiting both physical restitution of properties (as opposed to compensation) and return of former residents (para. 10).

By contrast, in Demopoulos the Court rejected the applicants’ calls for default restitution of all Greek Cypriot properties, based on the failure of the parties to come to an agreement and the resultant risk that unilateral action of this nature to redress old harms would fail to strike an appropriate balance: “there is no precedent in the Court’s case-law to support the proposition that a Contracting State must pursue a blanket policy of restoring property to owners without taking into account the current use or occupation of the property in question” (para. 117).

These considerations have several implications for a property mechanism. First, while it may be possible for the parties to set out limitations on return to pre-war homes, such restrictions would need to be agreed in a peace settlement and formulated in a manner that created a fair balance between the human rights of all categories of affected individuals. Second, while the Court will not accept a property claims mechanism that rules out any possibility of physical restitution (see Xenides-Arestis), a balance between restitution, compensation and other remedies may be possible, particularly in cases where the right to return is subjected to agreed and justified restrictions.

Steps toward a property claims mechanism

Given that the balance between physical restitution of claimed properties and other remedies is likely to be to some degree contingent on the nature of an overall peace settlement, the crucial task of those formulating property claims mechanisms will be to demonstrate that they have created the conditions for displaced persons to receive an adequate and effective remedy for their dispossession, whatever form that remedy may take. Several criteria should be considered in this regard:

  • Remedies include both substantive and procedural elements.
  • In terms of substance, the generally accepted rule is that physical restitution should be provided whenever possible. Where this is not possible, other remedies such as compensation through cash or other property can be considered. However as noted above, ‘impossibility’ may reasonably be construed in light of Demopoulos to include cases in which limiting restitution is necessary to protect the rights of others.
  • In either case, compensation should also be provided, if possible, for non-pecuniary damages as well as damage to and lost revenue from usurped properties. While compensation need not be at full value and may be standardised to assist in more expeditious assessment, it must bear a reasonable relationship to actual value.
  • Official recognition of usurped property rights is an important part of a remedy, as are steps to provide prospective legal protection to the restored property rights of displaced persons.
  • In terms of procedure, property claims mechanisms should be expedited, simple, inexpensive and accessible, with an emphasis on efficiency and rapid, predictable outcomes for claimants.
  • In particular, claimants should benefit from systems of presumptions in their favour, as well as lowered evidentiary burdens. Such a departure from ordinary judicial proceedings may be justified as an acknowledgment of the extraordinary nature of the circumstances of the claimants’ collective dispossession.

Property claims mechanisms are frequently expensive in terms of both direct and indirect costs and political capital in the context of difficult negotiated peace processes. Nevertheless, the initial steps of developing such mechanisms involve low initial expenditures and could serve as an important confidence-building measure, particularly if they are mutually adopted, with both state parties to the Nagorno-Karabakh conflict making simultaneous and substantially similar undertakings to displaced persons on the other side. In light of Sargsyan and Chiragov, such undertakings should include, at a minimum:

  • An undertaking to recognise all property rights affected by the conflict, and to provide adequate remedies, including restitution and compensation. If the state parties explicitly included interferences with property rights that took the form of instantaneous acts prior to entry into force of the ECHR, the symbolic impact of such a voluntary statement would be significant.
  • A definition of property rights that included all significant, legally protected tenure forms to land, business property and homes that existed under the former Soviet system without regard to whether such rights technically constituted private property rights at the time (e.g. based on the definition of ‘possessions’ in Sargsyan and Chiragov).
  • A commitment to accept ‘prima facie’ evidence of property rights and local residence on the terms and based on the definitions set out by the Court inSargsyan and Chiragov.
  • A joint timeline for finalising procedures for the property claims mechanisms, disseminating information to all interested parties, and collecting claims.

It should be noted that the steps required in the proposed joint timeline would increasingly require broader agreement on the outlines of a peace deal. Even deciding the procedures for claims mechanisms involves making choices that presuppose a certain degree of clarity on issues handled in the negotiations, notably return. Hence, there is both a risk and an opportunity. The risk is that proceeding too far toward a property mechanism without progress in the overall talks may undermine the credibility of both efforts. However, the hope is that sustained attention to the technical details of a property mechanism may give a new impetus to negotiations, helping to resolve the political impasse.

One response to “Sargsyan and Chiragov: The Strasbourg Court takes aim at frozen conflicts?

  1. Update: the Rule 9 Submission I drafted with EHRAC is now submitted:
    Will try to post more on this soon…

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