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. Continue reading
Posted in Commentary, Resources
Tagged Armenia, Azerbaijan, coe, Demopoulos, ECHR, ECtHR, IDPs, Pinheiro Principles, Poulsen Principles, restitution, RSG IDPs
by Rhodri C. Williams
I’m very happy to announce the release of a new paper on the European Court of Human Rights and the Cyprus property issue (available here) that I wrote together with Ayla Gürel for the PRIO Cyprus Centre. The primary goal of the paper is to parse through the implications of the Court’s recent jurisprudence for the resolution of the property issue in the context of ongoing talks on the reunification of Cyprus. Our main conclusion is that the effect of these cases is to rule out some of the more extreme proposals from both sides, effectively tightening the legal parameters within which the negotiators nevertheless retain considerable discretion to arrive at a political compromise.
The analysis revolves around a series of judgments that subtly broke with the Court’s earlier caselaw on Cyprus and culminated in the March 2010 decision in Demopoulos v. Turkey. As I described in an earlier note on this decision for International Legal Materials, the Demopoulos Court rejected the Greek Cypriot position that a remedy for property violations resulting from the 1974 Turkish invasion of northern Cyprus would have to take the form of restitution except in cases where this was ‘materially impossible’. Instead, the Court approved a Turkish Cypriot property commission that was mandated to offer remedies involving compensation or exchange (rather than restitution) in a much broader range of circumstances than material impossibility.
While the implications of this decision for the broader discourse on ‘housing land and property’ (HLP) issues remains highly topical, we focus our analysis on how the Demopoulos line of decisions fits into the Court’s evolving caselaw on the application of the European Convention on Human Rights (ECHR) in ‘transitional’ settings such as Cyprus. One of the issues we look at, for instance, involves debates surrounding the application of the Court’s new ‘pilot judgment procedure’ in these cases. However, I think one of the most interesting aspects of the case – and one which seems to have drawn surprisingly little attention to date – is the extent to which the Demopoulos ruling demonstrates the power of Article 8 analysis (on the right to the home under the ECHR) in shaping Article 1 Protocol 1 outcomes (related to the right to property).
The mutually reinforcing nature of Article 8 and Article 1 Protocol 1 is hardly news, and the significance of this linkage in restitution settings has been commented on by a number of observers including Antoine Buyse, author of the ECHR Blog. What is striking in the Demopoulos case is that one of the implicit grounds for the Court’s ruling appears to be a determination that the protection of rights to the home under Article 8 of the ECHR have by and large shifted from Greek Cypriot property claimants (who remain legal owners but are increasingly unlikely to be found to have significant links to homes they left behind two generations ago) and to Turkish Cypriot occupants. While the Court does not directly state that occupants of claimed property are now protected under Article 8, such a finding is arguably implicit in the Court’s concern that blanket restitution could give rise to ‘disproportionate new wrongs’ (para. 117):
The Court must also remark that some thirty-five years after the applicants, or their predecessors in title, left their property, it would risk being arbitrary and injudicious for it to attempt to impose an obligation on the respondent State to effect restitution in all cases, or even in all cases save those in which there is material impossibility, …. It cannot agree that the respondent State should be prohibited from taking into account other considerations, in particular the position of third parties. It cannot be within this Court’s task in interpreting and applying the provisions of the Convention to impose an unconditional obligation on a Government to embark on the forcible eviction and rehousing of potentially large numbers of men, women and children even with the aim of vindicating the rights of victims of violations of the Convention. (para. 116)
In other words, it appears that the Court has accepted that long-term occupation of claimed property can give rise to protected rights to the home, and that the existence of these rights can legitimately limit the ‘possibility’ of restitution in favor of owners. If this proposition holds up, it may come to be seen as a significant precedent that the current debates surrounding post-conflict HLP rights will need to come to grips with. On the other hand, it will also be crucial to distinguish the Court’s findings based on a number of factors unique to the Cyprus context such as the protracted nature of displacement there and the failure of the parties to date to achieve a negotiated settlement.
It can be hard to get around Bosnia in looking at post-conflict housing, land and property (HLP) issues. For better or for worse, Bosnia set the post-Cold War paradigm of mass administrative restitution that laid the ground for the 2006 Pinheiro Principles, and which has since been roundly criticized as raising false expectations in settings with weaker national capacities, vaguer international commitments and less tidy, uniform and (relatively) equitable land and property relations. However, despite the importance of looking beyond the Balkans in developing a clear-eyed view of the HLP challenges that lurk in such heterogeneous settings as Sudan, Afghanistan and Colombia, yet Bosnia refuses to be silent.
Late last week, the Fourth Section of the European Court of Human Rights released its judgment in the Case of Dokic v. Bosnia and Herzegovina (see the press release here and the full text of the decision here). This decision awards compensation for pecuniary and non-pecuniary damages to a military school lecturer who had begun the process of privatizing his socially-owned flat prior to the conflict in Bosnia and was subsequently denied a remedy for the loss of his rights due to a quirk in the restitution laws of one of Bosnia’s two post-war federal “entities” that created special rules for “military apartments” from the pre-war housing fund of the Yugoslav National Army (for a more detailed description of this controversy see section VI.D of a 2005 article I wrote on Bosnian restitution).
In issuing this decision, the Court ties up one of the many legal loose ends that continue to haunt the former Yugoslavia a decade after the fighting stopped. The judgment also further rounds out the restitution and compensation-related jurisprudence of the Court under Article 1 of the first Protocol to the European Convention on Human Rights and – upon becoming final – is likely to have significant political and financial implications in Bosnia and possibly the wider region. Among many of its interesting aspects (to be discussed in more detail in a subsequent post), the judgment also cites not only the Pinheiro Principles but also the more recent Resolution 1708 (2010) of the Parliamentary Assembly of the Council of Europe (see TN posting here) as ‘relevant international documents’.
The Dokic decision carries with it a number of personal associations for me. At the end of my time with the OSCE in Bosnia, I drafted and presented an amicus curiae brief to the Bosnian Constitutional Court that asserted one of the three arguments – failure to demonstrate use of confiscated military apartments for the asserted humanitarian aims – that the ECtHR relies on in finding a violation (see para. 61). And more recently, I had the privilege of assisting the CoE PACE Rapporteur, Jorgen Poulsen, in developing a report that helped lead to the adoption of Resolution 1708.
In this context, it seems fitting that the Dokic decision was nearly simultaneously brought to my attention today by former Bosnia colleagues Massimo Moratti and Javier Leon Diaz, and that the former will be guest-blogging later this week on his view of the longer term repercussions of restitution in Bosnia. Massimo was one of the architects of Bosnian restitution, with experience opening the process up in Prijedor, the site of notorious ethnic cleansing during the war, as well as managing monitoring and policy formulation at both the regional and national level with the OSCE. Having gotten a bit of perspective as an international consultant and more recently returned to work again in Bosnia, Massimo’s forthcoming observations provide a strong and locally grounded complementary note to the legal conclusions in the Dokic case.