Judgment (Merits) of Court (Grand Chamber), June 16, 2015 (case CASE OF SARGSYAN v. AZERBAIJAN)

Judge:GASPARYAN N. ; OHANYAN K.
Defense:AZERBAIJAN
Resolution Date:June 16, 2015
Issuing Organization:Court (Grand Chamber)

GRAND CHAMBER

CASE OF SARGSYAN v. AZERBAIJAN

(Application no. 40167/06)

JUDGMENT

(Merits)

STRASBOURG

16 June 2015

This judgment is final but may be subject to editorial revision.

In the case of Sargsyan v. Azerbaijan,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

             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 5 February 2014 and on 22 January 2015,

Delivers the following judgment, which was adopted on the last‑mentioned date:

PROCEDURE

  1. The case originated in an application (no. 40167/06) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Mr Minas Sargsyan (“the applicant”), on 11 August 2006. The applicant died in 2009. Subsequently, the application was pursued by his widow, Ms Lena Sargsyan, born in 1936, and by his son Vladimir and his daughters Tsovinar and Nina Sargsyan, born in 1957 and 1959, and 1966 respectively. Ms Lena Sargsyan died in January 2014. Vladimir and Tsovinar Sargsyan pursued the proceedings on the applicant’s behalf.

  2. The applicant, who had been granted legal aid, was represented by Ms N. Gasparyan and Ms K. Ohanyan, lawyers practising in Yerevan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

  3. The applicant alleged, in particular, that the denial of his right to return to the village of Gulistan and to have access to his property there or to be compensated for its loss and the denial of access to his home and to the graves of his relatives in Gulistan amounted to continuing violations of Article 1 of Protocol No. 1 and of Article 8 of the Convention. Moreover, he alleged a violation of Article 13 of the Convention in that no effective remedy was available in respect to the above complaints. Finally, he alleged with a view to all complaints set out above, that he was subjected to discrimination on the basis of his ethnic origin and his religious affiliation in violation of Article 14 of the Convention.

  4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). The Armenian Government made use of their right to intervene under Article 36 § 1 of the Convention. They were represented by their Agent, Mr. G. Kostanyan.

  5. On 11 March 2010 a Chamber of the First Section, composed of the following judges: Christos Rozakis, Nina Vajić, Khanlar Hajiyev, Dean Spielmann, Sverre Erik Jebens, Giorgio Malinverni and George Nicolaou and also of Søren Nielsen, 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 Chiragov and Others v. Armenia (application no. 13216/05) 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 partly 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 applicant and the Government each filed further written observations (Rule 59 § 1) on the merits. In addition, third-party comments were received from the Armenian Government.

  10. On 12 September 2013 the Court decided to request factual information from the American Association for the Advancement of Science (“the AAAS”) in the framework of its “Geospatial Technologies and Human Rights Programme” (Rule A1 §§ 1 and 2 of the Annex to the Rules of Court). In November 2013 the AAAS submitted a report “High‑resolution satellite imagery assessment of Gulistan, Azerbaijan 2002‑2012, (“the AAAS report”). The respondent Government objected to the disclosure of a number of images. On 10 December 2013 the President granted the request. Only those parts of the report which were subject to disclosure were taken to the case-file.

  11. On 3 February 2014 the Court viewed all DVDs containing footage of Gulistan and its surroundings submitted by the applicant, the respondent Government and the intervening Government and relevant parts of the AAAS report.

  12. A hearing on the merits took place in public in the Human Rights Building, Strasbourg, on 5 February 2014 (Rule 59 § 3).

    There appeared before the Court:

    (a) for the GovernmentMr              C. Asgarov,              Agent,Mr              M.N. Shaw, QC,              Mr              G. Lansky,               Counsel,Mr              O. Gvaladze,              Mr              H. Tretter,               Ms              T. Urdaneta Wittek,               Advisers;

    (b) for the applicantMr              P. Leach,               Ms              N. Gasparyan,              Counsel,Ms              K. Ohanyan,               Mr              A. Aloyan,               Mr              V. Grigoryan,              Advisers;

    (c) for the Armenian GovernmentMr              G. Kostanyan,              Agent,Mr              E. Babayan,              Counsel.

  13. The Court heard addresses by Mr Leach, Ms Gasparyan, Mr Grigoryan, Mr Shaw, Mr Lansky and Mr Kostanyan.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

    1. Background

  14. At the time of the demise of the USSR, 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 (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 km wide.

  15. 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.

  16. 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.

  17. 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”.

  18. 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.

  19. 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% 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.

  20. In early 1992 the conflict gradually escalated into full-scale war. By the end of 1993, ethnic...

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