GRAND CHAMBER CASE OF CHIRAGOV AND OTHERS v. ARMENIA (Application no. 13216/05) JUDGMENT (Merits) STRASBOURG 16 June 2015 This judgment is final but may be subject to editorial revision. CHIRAGOV AND OTHERS v. ARMENIA JUDGMENT (MERITS) 1 In the case of Chiragov and Others v. Armenia, 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 22-23 January 2014 and 22 January 2015, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 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. 2 CHIRAGOV AND OTHERS v. ARMENIA JUDGMENT (MERITS) 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. CHIRAGOV AND OTHERS v. ARMENIA JUDGMENT (MERITS) 3 There appeared before the Court: (a) for the respondent Government Mr G. KOSTANYAN, Agent, Mr G. ROBERTSON, QC, Counsel, Mr E. BABAYAN, Mr T. COLLIS, Advisers; (b) for the applicants Mr M. MULLER, QC, Mr M. IVERS, Mr S. SWAROOP, Ms M. BUTLER, Counsel, Ms C. VINE, Ms B. POYNOR, Ms S. KARAKAŞ, Ms A. EVANS, Advisers; (c) for the Azerbaijani Government Mr C. ASGAROV, Agent, Mr M.N. SHAW, QC, Mr G. LANSKY, Counsel, Mr O. GVALADZE, Mr H. TRETTER, Ms T. URDANETA WITTEK, Mr O. ISMAYILOV, Advisers. 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. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. 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) 5 declared 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 Nagorno- Karabakh 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.