The ECHR judgment of 12 December 2017 in the case of Sargsyan v. Azerbaijan (application No. 40167/06) and the ECHR Judgment of December 12, 2017 "Chiragov and Others" v. Armenia (application No. 13216/05 ).
In 2005 and 2006, the applicants were assisted in the preparation of applications. Subsequently, applications were communicated to Azerbaijan and Armenia, respectively.
The complaint on the consideration of the issue of payment of cumulative compensation for pecuniary and non-pecuniary damage to applicants who were forced to leave their homes during the Armenian-Azerbaijani conflict in Nagorno-Karabakh was successfully considered. The applicants were awarded compensation for pecuniary and non-pecuniary damage.
CIRCUMSTANCES OF THE CASE
In the case of Sargsyan v. Azerbaijan, the applicant and his family were ethnic Armenians who lived in the village of Gulistan in the modern Goranboy region of Azerbaijan. The applicants in the Chiragov and Others v. Armenia case were Azerbaijani Kurds living in the Lachin district of Azerbaijan. The applicants were forced to leave their homes in 1992 during the Armenian-Azerbaijani conflict over Nagorno-Karabakh.
By the judgments rendered on 16 June 2015 (hereinafter referred to as the Basic Orders), the Grand Chamber established continuing violations of Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention. The question of the application of Article 41 of the Convention was postponed in both cases.
ISSUES OF LAW
In the application of Article 41 of the Convention. (a) Preliminary remarks. These two cases were exceptional and related to a continuing conflict. The active military phase of the conflict in Nagorno-Karabakh took place in 1992-1994, but despite the cease-fire agreement concluded in May 1994 and the negotiations held within the framework of the OSCE Minsk Group, the peace treaty was not concluded. Twenty-three years later, ceasefire violations continued. Recently, there was an escalation of the conflict along the line of contact, especially during the military clashes in early April 2016. The events that forced the applicants to leave their property and leave their homes occurred in 1992. The authorities of the respondent States ratified the Convention 10 years after these events, Azerbaijan on 15 April 2002 and Armenia on 26 April 2002. Without having jurisdiction ratione temporis concerning the events preceding the ratification of the Convention, the Court concluded, in its main decisions, that the applicants retained their property rights and, from the date of entry into force of the Convention, established continuing violations of the applicants' rights.
Ratione temporis (lat.) Is a temporary criterion for the admissibility of a complaint.
The European Court, therefore, has dealt with a continuing situation that has its roots in the unresolved conflict in Nagorno-Karabakh and the adjacent corridor, and still affects a large number of individuals. The European Court has over 1,000 individual complaints filed by persons who were displaced during the conflict, more than half of them are filed against the Armenian authorities, the rest are against the authorities of Azerbaijan. The applicants in these two cases were only a small fraction of the number of persons estimated to exceed a million who were forced to flee during the conflict and who have not been able to return to their property and homes since, or have received any compensation for the loss of their use.
Before the accession to the Council of Europe, the Armenian and Azerbaijani authorities accepted the obligation to take measures for a peaceful settlement of the conflict. Approximately 15 years have passed since the ratification of the Convention by both states without any prospect of a political solution. Two interested states must find such a solution.
The Court is not a court of first instance. It is not possible, and it is impractical for its function as an international court to resolve a large number of cases that require the establishment of concrete facts or the calculation of monetary compensation, which, as a matter of principle and good practice, falls within the scope of national jurisdictions. It was the evasion of the authorities of the respondent States from compliance with their obligations upon accession to the Council of Europe, as well as obligations under the Convention, forcing the European Court in these cases to act as a court of first instance, establishing relevant facts, some of which occurred many years ago, studying evidence in respect of property claims and finally assessing monetary compensation.
Without prejudice to any compensation awarded as just satisfaction in the present case, an effective and constructive implementation of the main decisions is required, requiring the adoption of general measures at the domestic levels. Guidance on appropriate measures is given in the main regulations.
(b) General principles for fair compensation. If the nature of the infringement allows restitutio in integrum, then the authorities of the respondent State must do so, the European Court has neither the authority nor the practical opportunity to do so on its own. If, on the other hand, domestic law does not permit restoration or only partially allows, Article 41 of the Convention allows the Court to award such compensation to the injured party as seems appropriate. Nevertheless, some situations, especially those that affect long-term conflicts, in reality are not subject to complete reparation. As for claims for property damage, there must be a clear causal link between the damage claimed by the applicant and the violation of the Convention. With respect to damage related to immovable property, where there was no loss of property, but the applicant did not have access to it and therefore was able to use it, the Court's general approach consisted in assessing the damage caused by taking into account the annual land rent calculated in as the percentage of the market value of the property that could be obtained in the relevant period.
An exact calculation of the amounts necessary to compensate for the pecuniary damage suffered by the applicant may be hampered by the indeterminate nature of the damage arising from the breach. Compensation can still be awarded despite a large number of indeterminate indicators of future losses, although the more time has passed, the more uncertain the link between the violation and the damage. In such cases, the question of the level of fair compensation for past and future losses requires the applicant to be awarded, and this issue should be resolved by the Court at its discretion, taking into account the principle of fairness.
In addition, the Court recalls that there is no direct provision on non-material or moral harm. Situations in which the applicant suffered obvious trauma, physical or psychological, pain and suffering, distress, anxiety, frustration, feelings of injustice or humiliation, long-term uncertainty, disruption of life or a real loss of opportunity should be distinguished from cases in which public redress for harm incurred by the applicant in a decision binding on the Contracting Party was an appropriate form of reparation in itself. In some cases, when the legislation, procedure or practice was found not to comply with the convention standards, this was sufficient to rectify the situation. In other situations, however, the impact of a breach may be considered to be of a nature and degree, so severely affecting the applicant's moral well-being in order to demand something more. These elements are not subject to calculation or accurate quantification. The role of the European Court is also not to function in the same way as the domestic mechanism for sharing faults and compensatory damages between civilians. The guiding principle of the European Court of Justice is justice which, among other things, includes the flexibility and objective examination of what is fair, honest and reasonable in all circumstances of the case, including not only the applicant's situation, but also the general context in which the violation took place. Non-pecuniary compensation is a recognition of the fact that moral harm was caused as a result of a fundamental violation of human rights, and a reflection in the most general form of the severity of the damage. Finally, depending on the specific circumstances of the case, it may be appropriate to award the aggregate compensation for pecuniary and non-pecuniary damage.
(c) Compensation for damage in the Sargsyan case. (i) Property damage. The applicant initially requested restitution of his property, including the right to return to his property and home in the village of Gulistan, but did not support this requirement after the adoption of the main decision, pointing out the impossibility of returning to the village due to the continuing security situation. Thus, the award of compensation was an appropriate just satisfaction.
It is the conclusion that the applicant still has valid property rights with respect to his home and land in the village of Gulistan, referred the case to the competence of the European Court of Justice ratione temporis from April 15, 2002. Hence, first, that almost 10- year period during which the contested situation existed did not fall within the temporal jurisdiction of the European Court of Justice and that any damage incurred by the applicant before April 15, 2002 was not directly related to the violations found and therefore could not be compensated in accordance with Article 41 TO tion. Secondly, since the applicant was not deprived of his property rights, compensation could not be awarded for the loss of the house and plot as such, but only for the loss of use of this property.
Damage to the house, furniture, fruit trees of the applicant and loss of livestock took place before the entry into force of the Convention, and therefore no compensation could be awarded on these grounds. In addition, the loss of income from wages and pensions for the period preceding April 15, 2002 could not be compensated. As for the period after the entry into force of the Convention, there was no causal link between the violations established in the main Decision and the alleged damage. The required compensation for damage was not directly related to the inability of the applicant to restore his property rights or to receive compensation for the loss of use, but rather was associated with his relocation from the village of Gulistan in 1992 and the general consequences of the conflict.
Consequently, the material damage could be compensated only for two reasons, namely loss of income from the applicant's land plot and additional expenses for renting and living. The assessment of material damage on these grounds was difficult due to many uncertainties and difficulties. Some of these difficulties were related to the fact that the underlying conflict is still not resolved, and with the specific situation in the village of Gulistan. After the entry into force of the Convention, Gulistan was an abandoned village in which most of the buildings were dilapidated, it lies between the two opposing forces of the conflict. Under these circumstances, it was not possible to establish valid data on the loss of use of the applicant's property. It is also not possible to estimate the loss of use with reference to the annual land rent calculated as a percentage of the market value of the property that could be received in the period after the entry into force of the Convention.
Another difficulty, closely related to the first, concerned the lack of documentation or its inaccessibility. The main document submitted by the applicant in respect of his house and land in the village of Gulistan was the technical passport of the house issued in May 1991, back in the days of the Soviet Union. The technical certificate did not indicate the assessment of the land plot. This could partly be explained by the fact that when the land plot was handed over to the applicant, there was no private ownership of the land in accordance with the Soviet legal system, and it was transferred to it with a "right to use". As for the period falling within the competence of the European Court of Justice ratione temporis, there is no documentation relating to the value of the property or any income that could be derived from it.
Although the European Court found that the applicant, who lived in his home in Gulistan and received most of his income as a result of agricultural work on his land, had to bear the additional costs of living in Armenia, the uncertainty of assessing the loss of income from the applicant's land is also impeded accurate calculation of the difference in living expenses. The assessment was further complicated by the fact that it included a comparison of economic conditions in two different countries, which could change significantly with time. In view of all these elements, the pecuniary damage suffered by the applicant was not subject to an accurate assessment.
(ii) Moral harm. The applicant was to be morally harmed as a result of the protracted unsettled situation, uncertainty about the fate of his house and other property and the graves of his relatives in the village of Gulistan and the accompanying emotional suffering and distress. The finding of a violation of the Convention is not in itself sufficient just compensation for the moral damage caused. To date, the Government of the respondent State have not established a mechanism for filing property claims or have not taken other measures by which persons in the applicant's position could benefit.
(d) Compensation for damage in Chiragov and others. (i) Property damage. The applicants had no realistic prospect of returning home, and there was no such possibility in the period under review. Therefore, the award of compensation would be an appropriate fair compensation. The damage caused to the applicants prior to April 26, 2002, was not directly related to violations and therefore could not be compensated in accordance with Article 41 of the Convention. Since the applicants were not deprived of their property rights, compensation could not be awarded for the loss of the house and plot as such, but only for the loss of use of this property. It is unclear whether the applicants' houses were destroyed or partially destroyed or completely untouched. Given all the uncertainties, the explanations in the case do not sufficiently establish that the applicants had homes that existed in April 2002, or, if so, were in a state that could be taken into account for the purposes of awarding compensation. It was very difficult to determine the value of the applicants' land. This was exacerbated by the fact that at the beginning of the period, which could be considered by the European Court, the applicants' land was in occupied and heavily ravaged territory for 10 years, and another 15 years have passed since then in similar circumstances. Consequently, while material damage can be compensated for the loss of income from the applicants' land, including possible rents and revenues from farming and livestock, the European Court's general approach to calculating damages is not appropriate or useful in the circumstances of the present case.
In addition to personal testimony, data were not provided in support of allegations of loss of household property, cars, fruit trees and bushes, livestock. More importantly, all these things should reasonably be considered destroyed or disappeared during the military attack on the Lachin district or the subsequent 10-year period until April 2002. If any items still existed later, at least in subsequent years of destruction, they were so damaged that they would hardly be in a condition suitable for use. In respect of these items, there was no causal relationship between these losses and the continuing violations set out in the Basic Order. The loss of wages and other income was not related to the loss of the property and housing of the applicants, but rather to their relocation from Lachin in 1992. You can not speculate on what kind of work or income applicants could have in Lachin in 2002, 10 years after their flight. Accordingly, the material damage could be compensated only for two reasons, namely loss of income from the applicant's land and increased costs of living in Baku. However, the assessment of damage caused depended on many uncertain factors, in particular, since the requirements were based on limited documentation, and also because there was no reliable method or information for assessing the value of land. Consequently, the material damage caused to the applicants was not subject to an accurate assessment.
(ii) Moral harm. The circumstances of the case were to cause the complainants emotional distress and distress as a result of the protracted unsettled situation, as a result of which they were alienated from their property and homes in Lachin and were forced to lead the lives of displaced persons in Baku, apparently in less satisfactory living conditions. The finding of a violation of the Convention is not in itself sufficient just compensation for the moral damage caused.
(e) Overall assessment. The applicants in both cases are entitled to compensation for certain pecuniary and moral damage, which are closely related. The damage caused did not allow for an accurate calculation by itself, and due to the expiration of a long time, additional difficulties arose in its evaluation. The level of fair compensation must be determined at the discretion of the Court, in the light of what it considers fair. The Court took into account the primary responsibility of the authorities of the respondent States to compensate for the consequences of the violation of the Convention and reiterated the duty of the two states to find an acceptable solution to the conflict in Nagorno-Karabakh. Prior to the decision at the political level, the Court found it appropriate to award an aggregate amount of pecuniary and non-pecuniary damage to each of the applicants in the amount of EUR 5,000, covering all types of damages, as well as any tax that may be chargeable in connection with this amount.
The Court awarded EUR 5,000 in respect of pecuniary and non-pecuniary damage to each of the applicants.