Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies;Article 35-3 - Ratione loci);Preliminary objections dismissed (Article 34 - Victim);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 of Protocol No. 1 - Positive obligations;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for home;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Just satisfaction reserved (Article 41 - Just satisfaction)

Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Egidijus Kūris;Elisabet Fura;Françoise Tulkens;Ganna Yudkivska;George Nicolaou;Giorgio Malinverni;Guido Raimondi;Ineta Ziemele;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Luis López Guerra;Mark Villiger;Nicolas Bratza;Paulo Pinto De Albuquerque;Peer Lorenzen;Robert Spano;Sverre Erik Jebens;Ksenija Turković

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 kilometres wide.

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.

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.

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 NagornoKarabakh 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.

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.

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 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 NagornoKarabakh 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.

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.

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. The respondent Government maintained, however, that Armenia did not participate in the events, but that military action was carried out by the defence forces of Nagorno-Karabakh and volunteer groups. For almost eight months in 1991 the roads to Lachin were under the control of forces of Armenian ethnicity who manned and controlled checkpoints. The town of Lachin became completely isolated. In mid-May 1992 Lachin was subjected to aerial bombardment, in the course of which many houses were destroyed.

On 17 May 1992, realising that troops were advancing rapidly towards Lachin, villagers fled. The following day the town of Lachin was captured by forces of Armenian ethnicity. It appears that the town was looted and burned in the days following the takeover. According to information obtained by the respondent Government from the authorities of the “NKR”, the city of Lachin and the surrounding villages of Aghbulag, Chirag and Chiragli were completely destroyed during the military conflict.

In July 1992 the Armenian parliament decreed that it would not sign any international agreement stipulating that Nagorno-Karabakh remain a part of Azerbaijan.

According to a Human Rights Watch (HRW) report (“Seven Years of Conflict in Nagorno-Karabakh”, December 1994), the capture of the district of Lachin created approximately 30,000 Azeri displaced persons, many of them of Kurdish descent.

Following the capture of Lachin, ethnic Armenian forces continued to conquer four more Azerbaijani districts surrounding Nagorno-Karabakh (Kelbajar, Jabrayil, Gubadly and Zangilan) and substantial parts of two others (Agdam and Fizuli).

On 5 May 1994 a ceasefire agreement (the Bishkek Protocol) was signed by Armenia, Azerbaijan and the “NKR” following Russian mediation. It came into effect on 12 May.

According to the above-mentioned HRW report, between 1988 and 1994 an estimated 750,000–800,000 Azeris were forced out of NagornoKarabakh, Armenia, and the seven Azerbaijani districts surrounding Nagorno-Karabakh. According to information from Armenian authorities, 335,000 Armenian refugees from Azerbaijan and 78,000 internally displaced persons (from regions in Armenia bordering Azerbaijan) have been registered.

According to the respondent Government, the “NKR” controls 4,061 sq. km of the former Nagorno-Karabakh Autonomous Oblast. While it is debated how much of the two partly conquered districts is occupied by the “NKR”, it appears that the occupied territory of the seven surrounding districts in total amounts to some 7,500 sq. km.

Estimates of today’s population of Nagorno-Karabakh vary between 120,000 and 145,000 people, 95% being of Armenian ethnicity. Virtually no Azerbaijanis remain. The district of Lachin has a population of between 5,000 and 10,000 Armenians.

No political settlement of the conflict has so far been reached. The self-proclaimed independence of the “NKR” has not been recognised by any State or international organisation. Recurring breaches of the 1994 ceasefire agreement along the borders have led to the loss of many lives and the rhetoric of officials remains hostile. Moreover, according to international reports, tension has heightened in recent years and military expenditure in Armenia and Azerbaijan has increased significantly.

Several proposals for a peaceful solution of the conflict have failed. Negotiations have been carried out under the auspices of the OSCE (Organization for Security and Co-operation in Europe) and its so-called Minsk Group. In Madrid in November 2007 the Group’s three Co-Chairs – France, Russia and the United States – presented to Armenia and Azerbaijan a set of Basic Principles for a settlement. The Basic Principles, which have since been updated, call, inter alia, for the return of the territories surrounding Nagorno-Karabakh to Azerbaijani control, an interim status for Nagorno-Karabakh providing guarantees for security and self-governance, a corridor linking Armenia to Nagorno-Karabakh, a future determination of the final legal status of Nagorno-Karabakh through a legally binding referendum, the right of all internally displaced persons and refugees to return to their former places of residence, and international security guarantees that would include a peacekeeping operation. The idea is that the endorsement of these principles by Armenia and Azerbaijan would enable the drafting of a comprehensive and detailed settlement. Following intensive shuttle diplomacy by Minsk Group diplomats and a number of meetings between the presidents of the two countries in 2009, the process lost momentum in 2010. So far the parties to the conflict have not signed a formal agreement on the Basic Principles.

On 24 March 2011 the Minsk Group presented a “Report of the OSCE Minsk Group Co-Chairs’ Field Assessment Mission to the Occupied Territories of Azerbaijan Surrounding Nagorno-Karabakh”, the executive summary of which reads as follows:

“The OSCE Minsk Group Co-Chairs conducted a Field Assessment Mission to the seven occupied territories of Azerbaijan surrounding Nagorno-Karabakh (NK) from October 7-12, 2010, to assess the overall situation there, including humanitarian and other aspects. The Co-Chairs were joined by the Personal Representative of the OSCE Chairman-in-Office and his team, which provided logistical support, and by two experts from the UNHCR and one member of the 2005 OSCE Fact-Finding Mission. This was the first mission by the international community to the territories since 2005, and the first visit by UN personnel in 18 years.

In travelling more than 1,000 kilometers throughout the territories, the Co-Chairs saw stark evidence of the disastrous consequences of the Nagorno-Karabakh conflict and the failure to reach a peaceful settlement. Towns and villages that existed before the conflict are abandoned and almost entirely in ruins. While no reliable figures exist, the overall population is roughly estimated as 14,000 persons, living in small settlements and in the towns of Lachin and Kelbajar. The Co-Chairs assess that there has been no significant growth in the population since 2005. The settlers, for the most part ethnic Armenians who were relocated to the territories from elsewhere in Azerbaijan, live in precarious conditions, with poor infrastructure, little economic activity, and limited access to public services. Many lack identity documents. For administrative purposes, the seven territories, the former NK Oblast, and other areas have been incorporated into eight new districts.

The harsh reality of the situation in the territories has reinforced the view of the CoChairs that the status quo is unacceptable, and that only a peaceful, negotiated settlement can bring the prospect of a better, more certain future to the people who used to live in the territories and those who live there now. The Co-Chairs urge the leaders of all the parties to avoid any activities in the territories and other disputed areas that would prejudice a final settlement or change the character of these areas. They also recommend that measures be taken to preserve cemeteries and places of worship in the territories and to clarify the status of settlers who lack identity documents. The Co-Chairs intend to undertake further missions to other areas affected by the NK conflict, and to include in such missions experts from relevant international agencies that would be involved in implementing a peace settlement.”

On 18 June 2013 the Presidents of the Co-Chair countries of the Minsk group issued a joint statement on the Nagorno-Karabakh conflict:

“We, the Presidents of the OSCE Minsk Group Co-Chair countries – France, the Russian Federation, and the United States of America – remain committed to helping the parties to the Nagorno-Karabakh conflict reach a lasting and peaceful settlement. We express our 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.

We continue to firmly believe that the elements outlined in the statements of our countries over the last four years must be the foundation of any fair and lasting settlement to the Nagorno-Karabakh conflict. These elements should be seen as an integrated whole, as any attempt to select some elements over others would make it impossible to achieve a balanced solution.

We reiterate that only a negotiated settlement can lead to peace, stability, and reconciliation, opening opportunities for regional development and cooperation. The use of military force that has already created the current situation of confrontation and instability will not resolve the conflict. A renewal of hostilities would be disastrous for the population of the region, resulting in loss of life, more destruction, additional refugees, and enormous financial costs. We strongly urge the leaders of all the sides to recommit to the Helsinki principles, particularly those relating to the non-use of force or the threat of force, territorial integrity, and equal rights and self-determination of peoples. We also appeal to them to refrain from any actions or rhetoric that could raise tension in the region and lead to escalation of the conflict. The leaders should prepare their people for peace, not war.

Our countries stand ready to assist the sides, but the responsibility for putting an end to the Nagorno-Karabakh conflict remains with them. We strongly believe that further delay in reaching a balanced agreement on the framework for a comprehensive peace is unacceptable, and urge the leaders of Azerbaijan and Armenia to focus with renewed energy on the issues that remain unresolved.”

The applicants have stated that they are Azerbaijani Kurds who lived in the district of Lachin, where their ancestors had lived for hundreds of years. On 17 May 1992 they were forced to flee from the district to Baku. They have since been unable to return to their homes and properties because of Armenian occupation.

Mr Elkhan Chiragov was born in 1950. He lived in the district of Lachin. In the original application, it was mentioned that he lived in the village of Chirag, but in the reply to the Government’s observations it was stated that his correct home village was Chiragli, where he worked as a teacher for 15 years. He claimed that his possessions included a large furnished house of 250 sq. m, 55 beehives, 80 head of small livestock and nine head of big livestock, and five handmade carpets.

On 27 February 2007, together with the applicants’ reply to the respondent Government’s observations, he submitted an official certificate (“technical passport”), dated 19 July 1985, according to which a two-storey, 12-bedroom dwelling-house with a total area of 408 sq. m (living area 300 sq. m and subsidiary area 108 sq. m) and a storehouse of 60 sq. m, situated on a plot of land of 1200 sq. m, had been registered in his name.

He also presented a statement by three former neighbours, who affirmed that he owned a two-storey, 16-room dwelling-house of 260 sq. m and a car, as well as a statement by A. Jafarov and A. Halilov, representatives of Lachin City Executive Power of the Azerbaijan Republic, who stated that Mr Elkhan Chiragov had used to live in Chiragli village.

Before the Grand Chamber, the applicant submitted, inter alia, a marriage certificate according to which he was born in Chiragli and married there in 1978, birth certificates for his son and daughter, both born in Chiragli in 1979 and 1990 respectively, as well as a 1979 letter and a 1992 employment book issued by the Lachin District Educational Department, showing that he worked as a teacher in Chiragli.

Mr Adishirin Chiragov was born in 1947. He lived in the district of Lachin. In the original application, it was mentioned that he lived in the village of Chirag, but in the reply to the Government’s observations it was stated that his correct home village was Chiragli, where he worked as a teacher for 20 years. He claimed that his possessions included a large furnished house of 145 sq. m, a new “Niva” car, 65 head of small livestock and 11 head of big livestock, and six handmade carpets.

On 27 February 2007 he submitted a technical passport dated 22 April 1986, according to which a two-storey, eight-bedroom dwelling-house with a total area of 230.4 sq. m (living area 193.2 sq. m and subsidiary area 37.2 sq. m) and a storehouse of 90 sq. m, situated on a plot of land of 1200 sq. m, had been registered in his name.

He also presented a statement by three former neighbours, who affirmed that he owned a two-storey dwelling-house with eight rooms, as well as a statement by A. Jafarov and A. Halilov, representatives of Lachin City Executive Power of the Azerbaijan Republic, who stated that Mr Adishirin Chiragov had used to live in Chiragli village.

Before the Grand Chamber, the applicant submitted, inter alia, a marriage certificate according to which he was born in Chiragli and married there in 1975, birth certificates for his son and two daughters, all born in Chiragli in 1977, 1975 and 1982 respectively, as well as a USSR passport issued in 1981, indicating Chiragli as place of birth and containing a 1992 registration stamp designating Chiragli as place of residence.

Mr Ramiz Gebrayilov was born in Chiragli in 1960. In 1988 he graduated with a degree in engineering from the Polytechnic Institute in Baku. In 1983, while still studying in Baku, he visited the town of Lachin and was given a 5,000 sq. m plot of land by the State. He claimed that he built a six-bedroom house with a garage on it and lived there with his wife and children until he was forced to leave in 1992. There were also some cattle sheds. He also owned a car repair business called “Auto Service”, a shop and a café, which were situated on a further 5,000 sq. m of land that he owned. In addition, he had 12 cows, 70 lambs and 150 sheep.

Mr Gebrayilov had been unable to return to Lachin since his departure in 1992. In 2001 Armenian friends went to Lachin and videotaped the condition of the houses in the town. According to the applicant, he could see from the video that his house had been burnt down. He had also been informed by people who left Lachin after him that his house had been burnt down by Armenian forces a few days after he had left Lachin.

On 27 February 2007 Mr Gebrayilov submitted a technical passport dated 15 August 1986, according to which a two-storey, eight-bedroom dwelling-house with a total area of 203.2 sq. m (living area 171.2 sq. m and subsidiary area 32 sq. m), situated on a plot of land of 480 sq. m, had been registered in his name.

He also presented a statement by three former neighbours, who affirmed that he owned a two-storey house with eight rooms, as well as a statement by V. Maharramov, representative of Lachin City Executive Power of the Azerbaijan Republic, who stated that Mr Gebrayilov had used to live in his personal house in Lachin.

Before the Grand Chamber, the applicant submitted, inter alia, a birth certificate and a marriage certificate according to which he was born in Chiragli and married there in 1982, birth certificates for his daughter and two sons, all born in Lachin in 1982, 1986 and 1988 respectively, as well as an army book issued in 1979.

Mr Akif Hasanof was born in 1959 in the village of Aghbulag in the district of Lachin. He worked there as a teacher for 20 years. He claimed that his possessions included a large furnished house of 165 sq. m, a new “Niva” car, 100 head of small livestock and 16 head of big livestock, and 20 handmade carpets.

On 27 February 2007 he submitted a technical passport dated 13 September 1985, according to which a two-storey, nine-bedroom dwelling-house with a total area of 448.4 sq. m (living area 223.2 sq. m and subsidiary area 225.2 sq. m) and a storehouse of 75 sq. m, situated on a plot of land of 1600 sq. m, had been registered in his name.

He also presented a statement by three former neighbours, who affirmed that he owned a two-storey, nine-room dwelling-house as well as a stall for livestock and subsidiary buildings, as well as a statement by V. Maharramov, representative of Lachin City Executive Power of the Azerbaijan Republic, who stated that Mr Hasanof had used to live in his personal house in Aghbulag.

Before the Grand Chamber, the applicant submitted a birth certificate, a USSR passport issued in 1976 and an employment book issued by the Lachin District Educational Department, indicating that he was born in Aghbulag and had worked as a teacher and school director in that village between 1981 and 1988.

Mr Fekhreddin Pashayev was born in 1956 in the village of Kamalli in the district of Lachin. After graduating with a degree in engineering from the Polytechnic Institute in Baku in 1984, he returned to the town of Lachin where he was employed as an engineer and, from 1986, as chief engineer at the Ministry of Transport. He claimed that he owned and lived in a twostorey, three-bedroom house in Lachin which he had built himself. The house was situated at no. 50, 28 Aprel Kucesi, Lachin Seheri, Lachin Rayonu. Mr Pashayev submitted that the current market value of the house would be 50,000 US dollars (USD). He also owned the land around his house and had a share (about ten hectares) in a collective farm in Kamalli. Furthermore, he owned some land by means of “collective ownership”.

On 27 February 2007 he submitted a technical passport dated August 1990, according to which a two-storey dwelling-house with a total area of 133.2 sq. m (living area 51.6 sq. m and subsidiary area 81.6 sq. m), situated on a plot of land of 469.3 sq. m, had been registered in his name.

He also presented a statement by three former neighbours, who affirmed that he owned a two-storey, four-room dwelling-house, as well as a statement by V. Maharramov, representative of Lachin City Executive Power of the Azerbaijan Republic, who stated that Mr Pashayev had used to live in his own house at 28 Aprel Kucesi, Lachin.

Before the Grand Chamber, the applicant submitted, inter alia, a marriage certificate according to which he was born in Kamalli and married there in 1985, birth certificates for his two daughters, born in Kamalli in 1987 and in Lachin in 1991 respectively, a birth certificate for his son, registered as having been born in Kamalli in 1993, as well as an army book issued in 1978 and an employment book dated in 2000. He explained that, while his son had in fact been born in Baku, it was normal under the USSR propiska system to record a child as having been born at the parents’ registered place of residence.

Mr Qaraca Gabrayilov was born in the town of Lachin in 1940 and died on 19 June 2005. On 6 April 2005, at the time of submitting the present application, he stated that, when he was forced to leave on 17 May 1992, he had been living at holding no. 580, N. Narimanov Street, apt 128a in the town of Lachin, a property he owned and which included a two-storey residential family house built in 1976 with a surface of 187.1 sq. m and a yard area of 453.6 sq. m. He also claimed that he owned a further site of 300 sq. m on that street. Annexed to the application was a technical passport dated August 1985, according to which a two-storey house with a yard, of the mentioned sizes, had been registered in his name.

On 27 February 2007 the applicant’s representatives submitted, however, that he had been living at 41 H. Abdullayev Street in Lachin. Still, he owned the two properties on N. Narimanov Street. Attached to these submissions were a statement by three former neighbours and a statement by V. Maharramov, representative of Lachin City Executive Power of the Azerbaijan Republic, who stated that Mr Gabrayilov had used to live in his own house at H. Abdullayev Street, Lachin. Attached were also a decision of 29 January 1974 by the Lachin District Soviet of People’s Deputies to allocate the above-mentioned plot of 300 sq. m to the applicant and several invoices for animal feed, building materials and building subsidies allegedly used during the construction of his properties.

On 21 November 2007 Mr Sagatel Gabrayilov, the son of the applicant, stated that the family had used to live at N. Narimanov Street but that, on some unspecified date, the name and numbering of the street had been changed and their address was thereafter H. Abdullayev Street. Thus, the two addresses mentioned above referred to the same property.

Before the Grand Chamber, the applicant’s representatives submitted, inter alia, a birth certificate and a marriage certificate according to which he was born in Chiragli and married there in 1965, a birth certificate for his son, born in Alkhasli village in the district of Lachin in 1970, as well as an army book issued in 1963.

On the issue of whether the Republic of Armenia exercises authority in or control over the “NKR” and the surrounding territories, the applicants and the respondent Government as well as the third-party intervener, the Azerbaijani Government, have submitted extensive documentation and statements. The information thus received is summarised below, in so far as considered relevant by the Court.

In 1993 the United Nations Security Council adopted four resolutions relating to the Nagorno-Karabakh conflict.

Resolution 822 of 30 April (S/RES/822 (1993)):

“The Security Council,

Noting with alarm the escalation in armed hostilities and, in particular, the latest invasion of the Kelbadjar district of the Republic of Azerbaijan by local Armenian forces,

Demands the immediate cessation of all hostilities and hostile acts with a view to establishing a durable cease-fire, as well as immediate withdrawal of all occupying forces from the Kelbadjar district and other recently occupied areas of Azerbaijan,

Resolution 853 of 29 July (S/RES/853 (1993)):

“The Security Council,

Expressing its serious concern at the deterioration of relations between the Republic of Armenia and the Azerbaijani Republic and at the tensions between them,

Noting with alarm the escalation in armed hostilities and, in particular, the seizure of the district of Agdam in the Azerbaijani Republic,

Demands the immediate cessation of all hostilities and the immediate, complete and unconditional withdrawal of the occupying forces involved from the district of Agdam and other recently occupied districts of the Republic of Azerbaijan;

Urges the Government of the Republic of Armenia to continue to exert its influence to achieve compliance by the Armenians of the Nagorny-Karabakh region of the Azerbaijani Republic with its resolution 822 (1993) and the present resolution, and the acceptance by this party of the proposals of the Minsk Group of the [OSCE];

Resolution 874 of 14 October (S/RES/874 (1993)):

“The Security Council,

Expressing its serious concern that a continuation of the conflict in and around the Nagorny Karabakh region of the Azerbaijani Republic, and of the tensions between the Republic of Armenia and the Azerbaijani Republic, would endanger peace and security in the region,

Calls for the immediate implementation of the reciprocal and urgent steps provided for in the [OSCE] Minsk Group’s “Adjusted timetable”, including the withdrawal of forces from recently occupied territories and the removal of all obstacles to communication and transportation;

Resolution 884 of 12 November (S/RES/884 (1993)):

“The Security Council,

Noting with alarm the escalation in armed hostilities as [a] consequence of the violations of the cease-fire and excesses in the use of force in response to those violations, in particular the occupation of the Zangelan district and the city of Goradiz in the Azerbaijani Republic,

Calls upon the Government of Armenia to use its influence to achieve compliance by the Armenians of the Nagorny Karabakh region of the Azerbaijani Republic with resolutions 822 (1993), 853 (1993) and 874 (1993), and to ensure that the forces involved are not provided with the means to extend their military campaign further;

Demands from the parties concerned the immediate cessation of armed hostilities and hostile acts, the unilateral withdrawal of occupying forces from the Zangelan district and the city of Goradiz, and the withdrawal of occupying forces from the other recently occupied areas of the Azerbaijani Republic in accordance with the “Adjusted timetable of urgent steps to implement Security Council resolutions 822 (1993) and 853 (1993)” ... as amended by the [OSCE] Minsk Group meeting in Vienna of 2 to 8 November 1993;

The above-mentioned HRW report of December 1994 (see paragraph 22 above) contains accounts of the Nagorno-Karabakh conflict. While stating that “[a] Karabakh Armenian military offensive in May/June 1992 captured a large part of Lachin province”, it goes on to summarise the events in 1993 and 1994 as follows (at p. 58):

“... Karabakh Armenian troops – often with the support of forces from the Republic of Armenia – captured the remaining Azerbaijani provinces surrounding Nagorno-Karabakh and forced out the Azeri civilian population: the rest of Lachin province, and Kelbajar, Agdam, Fizuli, Jebrayil, Qubatli, and Zangelan provinces.”

The HRW report presents several pieces of information which point to an involvement of the army of the Republic of Armenia in Nagorno-Karabakh and the surrounding territories (pp. 67-73). Allegedly, Armenia had even sent members of its police force to perform police duties in the occupied territories. HRW spent two days in April 1994 interviewing Armenian uniformed soldiers on the streets of Yerevan. Thirty per cent of them were draftees in the army of the Republic of Armenia who had either fought in Karabakh, had orders to go to Karabakh or had ostensibly volunteered for service there. Moreover, on a single day in April 1994 HRW researchers had counted five buses holding an estimated 300 soldiers of the Armenian army entering Nagorno-Karabakh from Armenia. Other western journalists had reported to HRW researchers that they had seen eight more buses full of Armenian army soldiers heading for Azerbaijani territory from Armenia. According to HRW, as a matter of law, Armenian army troop involvement in Azerbaijan made Armenia a party to the conflict and made the war an international armed conflict between Armenia and Azerbaijan.

Several proposals for a solution to the conflict have been presented within the OSCE Minsk Group. A “package deal” proposal of July 1997 set out, under the heading “Agreement I – The end of armed hostilities”, a twostage process of withdrawal of armed forces. The second stage included the provision that “[t]he armed forces of Armenia will be withdrawn to within the borders of the Republic of Armenia”.

The “step-by-step” approach presented in December 1997 also contained a two-stage withdrawal process and stipulated, as part of the second phase, that “[a]ll Armenian forces located outside the borders of the Republic of Armenia will be withdrawn to locations within those borders”. Substantially the same wording was contained in the “common state” proposal of November 1998.

While these documents were discussed in Minsk Group negotiations, none of them led to an agreement between Armenia and Azerbaijan.

The applicants referred to statements by various political leaders and observers. For instance, Mr Robert Kocharyan, then prime minister of the “NKR”, stated in an interview with the Armenian newspaper “Golos Armenii” in February 1994 that Armenia supplied anti-aircraft weapons to Nagorno-Karabakh.

Moreover, Mr Vazgen Manukyan, Armenian minister of defence in 19921993, admitted in an interview with British journalist and writer Thomas de Waal in October 2000 that the public declarations that the Armenian army had taken no part in the war had been purely for foreign consumption (see Thomas de Waal, “Black Garden: Armenia and Azerbaijan through Peace and War”, New York University Press 2003, p. 210):

“You can be sure that whatever we said politically, the Karabakh Armenians and the Armenian Army were united in military actions. It was not important for me if someone was a Karabakhi or an Armenian.”

The annual report of the International Institute for Strategic Studies (IISS), “The Military Balance”, for the years 2002, 2003 and 2004 assessed that, of the 18,000 troops in Nagorno-Karabakh, 8,000 were personnel from Armenia. The 2013 report by the same institute expressed, inter alia, that “since 1994, Armenia has controlled most of Nagorno-Karabakh, and also seven adjacent regions of Azerbaijan, often called the ‘occupied territories’” (“The Military Balance” 2002, p. 66; 2003, p. 66; 2004, p. 82; and 2013, p. 218).

Mr David Atkinson, rapporteur of the Parliamentary Assembly of the Council of Europe, stated in November 2004 in his second report to the Political Affairs Committee concerning Nagorno-Karabakh (PACE Doc. 10364):

“According to the information given to me, Armenians from Armenia had participated in the armed fighting over the Nagorno-Karabakh region besides local Armenians from within Azerbaijan. Today, Armenia has soldiers stationed in the Nagorno-Karabakh region and the surrounding districts, people in the region have passports of Armenia, and the Armenian government transfers large budgetary resources to this area.”

Based on this report, the Parliamentary Assembly adopted on 25 January 2005 resolution 1416 in which it, inter alia, noted:

“1. The Parliamentary Assembly regrets that, more than a decade after the armed hostilities started, the conflict over the Nagorno-Karabakh region remains unsolved. Hundreds of thousands of people are still displaced and live in miserable conditions. Considerable parts of the territory of Azerbaijan are still occupied by Armenian forces, and separatist forces are still in control of the Nagorno-Karabakh region.

The Assembly expresses its concern that the military action, and the widespread ethnic hostilities which preceded it, led to large-scale ethnic expulsion and the creation of mono-ethnic areas which resemble the terrible concept of ethnic cleansing. The Assembly reaffirms that independence and secession of a regional territory from a state may only be achieved through a lawful and peaceful process based on the democratic support of the inhabitants of such territory and not in the wake of an armed conflict leading to ethnic expulsion and the de facto annexation of such territory to another state. The Assembly reiterates that the occupation of foreign territory by a member state constitutes a grave violation of that state’s obligations as a member of the Council of Europe and reaffirms the right of displaced persons from the area of conflict to return to their homes safely and with dignity.”

In its report “Nagorno-Karabakh: Viewing the Conflict from the Ground” of 14 September 2005, the International Crisis Group (ICG) stated the following in regard to the armed forces in the “NKR” (pp. 9-10):

“[Nagorno-Karabakh] may be the world’s most militarized society. The highly trained and equipped Nagorno-Karabakh Defence Army is primarily a ground force, for which Armenia provides much of the backbone. A Nagorno-Karabakh official told Crisis Group it has some 20,000 soldiers, while an independent expert [U.S. military analyst Richard Giragosian, July 2005] estimated 18,500. An additional 20,000 to 30,000 reservists allegedly could be mobilised. Based on its population, NagornoKarabakh cannot sustain such a large force without relying on substantial numbers of outsiders. According to an independent assessment [by Mr Giragosian], there are 8,500 Karabakh Armenians in the army and 10,000 from Armenia. ...

Nevertheless, many conscripts and contracted soldiers from Armenia continue to serve in NK. The (de facto) minister of defence admits his forces have 40 per cent military contract personnel, including citizens of Armenia. He claims that no Armenian citizens are unwillingly conscripted and says 500,000 Armenians of Nagorno-Karabakh descent live in Armenia, some of whom serve in the NagornoKarabakh forces. Former conscripts from Yerevan and other towns in Armenia have told Crisis Group they were seemingly arbitrarily sent to NagornoKarabakh and the occupied districts immediately after presenting themselves to the recruitment bureau. They deny that they ever volunteered to go to NagornoKarabakh or the adjacent occupied territory. They were not paid a bonus for serving outside Armenia, and they performed military service in Nagorno-Karabakh uniform, under Nagorno-Karabakh military command. Young Armenian recruits’ opposition to serving in Nagorno-Karabakh has increased, which may help explain an apparent decrease in the numbers being sent to NK.

There is a high degree of integration between the forces of Armenia and NagornoKarabakh. Senior Armenian authorities admit they give substantial equipment and weaponry. Nagorno-Karabakh authorities also acknowledge that Armenian officers assist with training and in providing specialised skills. However, Armenia insists that none of its army units are in Nagorno-Karabakh or the occupied territories around it.”

The Armenian Government objected to the report of the ICG, which organisation had no office in Armenia or the “NKR”. Further, the statement on the number of Armenian servicemen in the “NKR” derived from an email communication with Mr Giragosian, who had been contacted by the Government and had given the following declaration:

“While having this opinion I didn’t mean that the people serving in the Nagorno Karabakh armed forces are soldiers. I meant that approximately that number of volunteers are involved in the Nagorno Karabakh armed forces from Armenia and other states according to my calculations. As for the number mentioned by me I can’t insist that it’s correct as it is confidential information and nobody has the exact number. The background for my opinion was that in my opinion many Armenians from different parts of the world participate in the Nagorno Karabakh self-defence forces.”

On 19 April 2007 the Austrian newspaper “Der Standard” published an interview with the then foreign minister of Armenia, Mr Vartan Oskanyan. On the subject of the disputed territories, Mr Oskanyan reportedly referred to them as “the territories, which are now controlled by Armenia”.

A few days later the Armenian Embassy in Austria issued a press release stating that Mr Oskanyan had been misinterpreted and that the correct expression was “the territories, which are now controlled by Armenians”.

On 14 March 2008 the UN General Assembly adopted a resolution on “The Situation in the occupied territories of Azerbaijan” (A/RES/62/243). Recalling the 1993 Security Council resolutions (see paragraph 59 above), it contained the following passages:

“The General Assembly,

Demands the immediate, complete and unconditional withdrawal of all Armenian forces from all occupied territories of the Republic of Azerbaijan;

Reaffirms the inalienable right of the population expelled from the occupied territories of the Republic of Azerbaijan to return to their homes, and stresses the necessity of creating appropriate conditions for this return, including the comprehensive rehabilitation of the conflict-affected territories;

In an interview with Armenia Today, published on 29 October 2008, Mr Jirayr Sefilyan, a Lebanese-born Armenian military commander and political figure who was involved in the capture of the town of Shusha/Shushi in early May 1992 and later continued to serve in the armed forces of both the “NKR” and Armenia, reportedly made the following statement:

“We must turn the page of history, as starting from 1991 we have considered Karabakh as an independent state and declared that they should conduct negotiations. Who are we kidding? The whole world knows that the army of the NKR is a part of the armed forces of Armenia, that the budget of the NKR is financed from the budget of Armenia, the political leaders of the NKR are appointed from Yerevan. It is time to consider Karabakh as a part of Armenia, one of its regions. In the negotiation process the territory of Karabakh should be considered as a territory of Armenia and no territorial cession must be made.”

In a resolution of 20 May 2010 on the need for an EU strategy for the South Caucasus, the European Parliament expressed, inter alia, the following:

“[The European Parliament is] seriously concerned that hundreds of thousands of refugees and IDPs who fled their homes during or in connection with the NagornoKarabakh war remain displaced and denied their rights, including the right to return, property rights and the right to personal security; calls on all parties to unambiguously and unconditionally recognise these rights, the need for their prompt realisation and for a prompt solution to this problem that respects the principles of international law; demands, in this regard, the withdrawal of Armenian forces from all occupied territories of Azerbaijan, accompanied by deployment of international forces to be organised with respect of the UN Charter in order to provide the necessary security guarantees in a period of transition, which will ensure the security of the population of Nagorno-Karabakh and allow the displaced persons to return to their homes and further conflicts caused by homelessness to be prevented; calls on the Armenian and Azerbaijani authorities and leaders of relevant communities to demonstrate their commitment to the creation of peaceful inter-ethnic relations through practical preparations for the return of displaced persons; considers that the situation of the IDPs and refugees should be dealt with according to international standards, including with regard to the recent PACE Recommendation 1877(2009), ‘Europe’s forgotten people: protecting the human rights of long-term displaced persons’.”

In April 2012 the European Parliament passed a further resolution which, inter alia, noted that “deeply concerning reports exist of illegal activities exercised by Armenian troops on the occupied Azerbaijani territories, namely regular military manoeuvres, renewal of military hardware and personnel and the deepening of defensive echelons”. The European Parliament recommended that negotiations on the EU-Armenia Association Agreements be linked to commitments regarding “the withdrawal of Armenian forces from occupied territories surrounding Nagorno-Karabakh and their return to Azerbaijani control” and “call[ed] on Armenia to stop sending regular army conscripts to serve in NagornoKarabakh” (European Parliament resolution of 18 April 2012 containing the European Parliament’s recommendations to the Council, the Commission and the European External Action Service on the negotiations of the EU-Armenia Association Agreement).

The applicants submitted that, on various occasions in 2012 and 2013, the Armenian president, the minister of defence and high-ranking military staff visited the disputed territories to inspect troops, attend military exercises and hold meetings with military and other officials in the “NKR”. In July 2013, Armenia’s top army generals and other military officials, including the Armenian minister of defence and the commanders of the armed forces of the “NKR”, held a meeting in Nagorno-Karabakh, focusing on efforts to strengthen the Armenian military.

On 15 January 2013 Armenian president Mr Serzh Sargsyan held a meeting with the leaders of the legislative, executive and judiciary branches of the Republic of Armenia Ministry of Defence. His speech given at the meeting was published the same day on the official website of the president of the Republic of Armenia. It contained, inter alia, the following statements:

“It happened that from the first years of independence, the Army has been playing a special role in our society. It was the war, whose spirit was felt all over Armenia – in some places more than in the others. In those days, every family had a close or a distant relative in the Armenian Army; and the Army was in everyone’s heart. That feeling became stronger when our Army attained victory which was so important, which was vital.

The ultimate goal of our foreign policy is the final legal formulation of the victory achieved in the aggressive war unleashed by Azerbaijan against Artsakh. The Republic of Nagorno Karabakh must be recognized by the international community since there is no logical explanation as to why the people, who have exercised their legal right for self-determination and later protected it in the uneven war, should ever be part of Azerbaijan. Why the destiny of these people should be defined by the illegal decision once made by Stalin?

Armenia and Artsakh do not want war; however everyone must know that we will give a fitting rebuff to any challenge. The people of Artsakh will never face the danger of physical extermination again. The Republic of Armenia will guarantee against that.

Security of Artsakh is not a matter of prestige for us; it is a matter of life and death in the most direct sense of these words. The entire world must know and realize that we, the power structures of Armenia and Artsakh stand against the army which pays wages to the murderers, if that horde can be called army in the first place.”

In an opinion drawn up at the request of the Armenian Government, Dr Hari Bucur-Marcu, a military expert of Romanian nationality, stated that he had found nothing in the Armenian military policy that envisaged any form of control over “NKR” forces nor any indications on the ground that Armenian forces were present or active in the “NKR”. He further concluded that there was no evidence that Armenia exercised control or authority over the “NKR” or its defence force or that Armenian forces exercised any control over the government or governance of the “NKR”. The Government stated that Dr Bucur-Marcu had been given the opportunity to interview senior military officers in Armenia and access their records. By arrangement with the “NKR” Ministry of Foreign Affairs, he had further been able to travel there and to talk to military and political officials and examine documents.

On 25 June 1994 an “Agreement on Military Co-operation between the Governments of the Republic of Armenia and the Republic of NagornoKarabakh” was concluded. It provides, inter alia, the following:

“The Government of the Republic of Armenia and the Government of the Republic of Nagorno-Karabakh (hereinafter referred to as ‘the Parties’),

having regard to mutual interest in the field of military co-operation, taking into account the need to develop bilateral relationships and mutual trust through cooperation between the armed forces of the states of the Parties, seeking to strengthen the military and military-technical co-operation,

agreed on the following:

Both Parties shall conduct the military co-operation in the following directions:

(1) establishment of the army and reform of the armed forces;

(2) military science and education;

(3) military legislation;

(4) logistics of the armed forces;

(5) military medicine recovery of military servants and their family members;

(6) cultural and sport activities, tourism.

The co-operation in other directions shall be conducted upon mutual written agreement.

The parties shall conduct co-operation through:

(1) visits and working meetings at the level of Ministers of Defence, Chiefs of General Staff or other representatives authorised by the Ministers of Defence;

(2) consultations, exchange of experience, training of military staff and increasing of qualification;

(3) implementation of mutual military exercises;

(4) participation in conferences, consultations, seminars;

(5) exchange of information, documents and services upon specific arrangements;

(6) cultural events;

(7) provision of military services;

(8) creation of conditions for mutual use of elements of infrastructure of the armed forces of the Parties within the framework of this Agreement;

(9) education of highly qualified military and technical staff and specialists.

Within the framework of co-operation under this Agreement the Parties shall agree that conscripts of the Republic of Armenia and the Republic of Nagorno-Karabakh have the right to serve their fixed-term military service in the Republic of NagornoKarabakh and the Republic of Armenia respectively. In case of serving the fixed-term military service in the territory of that state the person shall be considered exempt from the fixed-term military service in the country of his citizenship.

Within the framework of this Agreement the Parties shall agree also that:

(1) in case the citizens of the Republic of Armenia serving the fixed-term military service in the Republic of Nagorno-Karabakh commits a military crime, the criminal prosecution and trial against them shall be conducted in the territory of the Republic of Armenia by the authorities of the Republic of Armenia in accordance with the procedure established under the legislation of the Republic of Armenia;

(2) in case the citizens of the Republic of Nagorno-Karabakh serving the fixed-term military service in the Republic of Armenia commits a military crime, the criminal prosecution and trial against them shall be conducted in the territory of the Republic of Nagorno-Karabakh by the authorities of the Republic of Nagorno-Karabakh in accordance with the procedure established under the legislation of the Republic of Nagorno-Karabakh.

Within the framework of this Agreement the Parties will provide mutual technical support with regard to armament and recovery and maintenance of military equipment.

Concluding agreements with those performing activities on armament and recovery and maintenance of military equipment, as well as ensuring the living conditions of the representatives of manufacturing enterprises in the territory of the states of the Parties shall be carried out by the Ministry of Defence of the client State.

Other forms of cooperation shall be conducted upon mutual written agreement.

The Armenian Government asserted that the Armenian conscripts who, pursuant to Article 4 of the 1994 agreement, performed their service in the “NKR” were mainly in the lower ranks and comprised no more than 5% (up to 1,500 persons) of the “NKR” defence force. However, the Government did not rule out the possibility that some Armenian nationals may have served in the “NKR” defence force on a contractual and voluntary basis. Among those serving in the “NKR” defence force, side by side with inhabitants of Nagorno-Karabakh, were also volunteers of Armenian origin from various countries where there is an Armenian diaspora. Allegedly, the Armenian soldiers serving in the “NKR” were under the direct command of the “NKR” defence force, which was the only armed force operational in the “NKR”. The Government maintained that the Armenian conscripts serving in the “NKR” under the 1994 agreement did so in accordance with their own wishes (see, however, the ICG report, paragraph 65 above).

The Armenian Government further stated that the Armenian army and the “NKR” defence force co-operate in a defence alliance in matters such as intelligence sharing, visits of senior officers, seminars, joint military exercises, parade inspections and the like.

On 11 October 2007 the Court issued a partial decision as to the admissibility of the cases of Zalyan, Sargsyan and Serobyan v. Armenia (applications nos. 36894/04 and 3521/07), which concerns the alleged illtreatment and unlawful detention of three military servicemen. The facts of the case reveal that the applicants had been drafted into the Armenian army in May 2003 and had been assigned to military unit no. 33651, stationed near the village of Mataghis in the Martakert region of the “NKR”. Two servicemen of the same military unit were found dead in January 2004. A criminal investigation into their murders ensued and the applicants were questioned for a number of days in April 2004 in Nagorno-Karabakh – first at their military unit, then at the Martakert Garrison Military Prosecutor’s Office and finally at the Stepanakert Military Police Department – before being transported to Yerevan for further proceedings. The officers conducting the questioning of the applicants in Nagorno-Karabakh included two investigators of the Military Prosecutor’s Office of Armenia, an investigator of the Martakert Garrison Military Prosecutor’s Office and an Armenian military police officer. A chief of battalion of the military unit was also present at the first questioning. The applicants were subsequently charged with murder and the criminal trial against them commenced in November 2004 at the Syunik Regional Court, sitting in Stepanakert. The applicants were present at the trial. On 18 May 2005 the court found the applicants guilty of murder and sentenced them to 15 years’ imprisonment.

Similarly, as reported by the human rights organisation Forum 18 as well as HRW, Mr Armen Grigoryan, an Armenian citizen and conscientious objector, was taken from a military recruitment office in Yerevan in June 2004 and transferred to a military unit based in Nagorno-Karabakh. After having fled the unit, Mr Grigoryan was arrested and was eventually, by a court sitting in Stepanakert on 9 June 2005, found guilty of having refused military service and sentenced to two years’ imprisonment.

Several prominent Armenian politicians have held, at different times, high positions in both the Republic of Armenia and the “NKR” or have otherwise had close ties to Nagorno-Karabakh. The first president of the Republic of Armenia, Mr Levon Ter-Petrosyan, was a member of the Armenian “Karabakh Committee” which, in the late 1980s, led the movement for unification of Nagorno-Karabakh with Armenia. He was in April 1998 succeeded as president of Armenia by Mr Robert Kocharyan, who had previously served as prime minister of the “NKR” from August 1992 to December 1994, as president of the “NKR” from December 1994 to March 1997 and as prime minister of the Republic of Armenia from March 1997 to April 1998. In April 2008 Mr Serzh Sargsyan became the third president of Armenia. In August 1993 he had been appointed minister of defence of Armenia after having served from 1989 to 1993 as chairman of the “Nagorno-Karabakh Republic Self-Defense Forces Committee”. Furthermore, in 2007 Mr Seyran Ohanyan switched from being the minister of defence of the “NKR” to becoming the commander-in-chief of the Armenian armed forces. In April 2008 he was appointed minister of defence of Armenia.

The applicants claimed that the laws of the Republic of Armenia apply in the “NKR”. However, according to the Armenian Government, between January 1992 and August 2006 the “NKR” adopted 609 different laws, one of the first being “The Law on the Basis of Nagorno-Karabakh Republic State Independence”. Article 2 of this law provides that the “NKR decides independently all issues concerning the Republic’s political, economic, social and cultural, construction, administrative and territorial division policies”. Also in January 1992, bodies of executive and judicial power were created, including the Council of Ministers (the Government), the Supreme Court and the first instance courts of the “NKR” as well as the “NKR” prosecutor’s office. The “NKR” also has its own president, parliament and police force as well as bodies of local self-government, including administrations governing the territories surrounding the “NKR”, whose representatives are appointed by “NKR” authorities. Presidential and parliamentary elections are held. While several laws have been adopted from Armenian legislation, the Armenian Government maintained that they did not apply automatically, i.e. by decisions of Armenian courts, but were independently interpreted and applied by “NKR” courts, whether in the district of Lachin or elsewhere.

In its 2005 report (referred to above, paragraph 65), the ICG stated the following (pp. 12-13):

“The economy of Nagorno-Karabakh was previously integrated into Soviet Azerbaijan’s but was largely destroyed by the war. Today it is closely tied to Armenia and highly dependent on its financial inputs. All transactions are done via Armenia, and products produced in Nagorno-Karabakh often are labelled “made in Armenia” for export. Yerevan provides half the budget. ...

Nagorno-Karabakh is highly dependent on external financial support, primarily from Armenia but also from the U.S. and the world-wide diaspora. It cannot collect sufficient revenue to meet its budgetary needs, and in absolute terms is receiving increasing external support. The 2005 budget totalled 24.18 billion drams (some $53.73 million). Locally collected revenues are expected to total 6.46 billion drams (about $14.35 million), 26.7 per cent of expenditures.

Since 1993 Nagorno-Karabakh has benefited from an Armenian ‘inter-state loan’. According to the Armenian prime minister, this will be 13 billion drams ($28.88 million) in 2005, a significant increase from 2002 when it was 9 billion drams ($16.07 million). However, Nagorno-Karabakh’s (de facto) prime minister argues that part of this loan – 4.259 billion drams (about $9.46 million) – is in fact Armenia’s repayment of VAT, customs and excise duties that Armenia levies on goods that pass through its territory, destined for Nagorno-Karabakh. The remainder of the loan has a ten-year repayment period at nominal interest. Though Armenia has provided such loans since 1993, nothing has been repaid. According to the Armenian prime minister, Stepanakert ‘is not yet in a position to repay... . In the coming years we will need to continue providing this loan to help them continue building their infrastructure ... we do not envision that they will be able to go ahead on their own anytime soon’.

The U.S. is the only other state that provides direct governmental assistance. In 1998 Congress for the first time designated Nagorno-Karabakh a recipient of humanitarian aid distinct from Azerbaijan. The U.S. money is administered by its Agency for International Development (USAID), which has distributed it to such NGOs as the Fund for Armenian Relief, Save the Children, and the International Committee of the Red Cross. Through September 2004, the U.S. had pledged $23,274,992 to NagornoKarabakh and had spent $17,831,608. Armenian lobby groups have been influential in making these allocations possible.”

The ICG further stated that the Armenian “inter-state loan” had accounted for 67.3% of the “NKR” budget in 2001 (according to the “Statistical Yearbook of Nagorno-Karabakh”) and 56.9% in 2004 (according to an ICG communication with the director of the “NKR” National Statistical Service).

The loan provided by the Republic of Armenia to the “NKR” for the years 2004 and 2005 amounted to USD 51,000,000. USD 40,000,000 went to rebuilding educational institutions and USD 11,000,000 to help the families of killed soldiers.

The Hayastan All-Armenian Fund was founded by an Armenian presidential decree on 3 March 1992. According to its official website, its mission is the following:

“[T]o unite Armenians in Armenia and overseas to overcome the country’s difficulties and to help establish sustainable development in Armenia and Artsakh. In addition to [the] problems associated with the break-up of the Soviet Union, the government had to find solutions to the aftermath of the 1988 Spitak earthquake, an economic blockade and the rehabilitation of areas that had suffered from the Artsakh conflict.”

The fund’s annual report for 2012 include messages from Mr Serzh Sargsyan, president of the Republic of Armenia, and Mr Bako Sahakyan, “president of the Republic of Artsakh”, which, inter alia, contain the following statements:

Mr Sargsyan:

“The Hayastan All-Armenian Fund is an embodiment of the unity between Armenia, Artsakh and the diaspora. As such, the fund is consistently, resolutely, and before our very eyes transforming our pan-national inner strength into tangible power.”

Mr Sahakyan:

“The year 2012 was a jubilee year for the Armenian people. As a nation, we celebrated the 20th anniversary of the founding of the NKR Defense Army and the liberation of Shushi, a magnificent victory which was made possible by the united efforts and indestructible will of the entire Armenian people, the selfless bravery and daring of its valiant sons and daughters.”

The fund has 25 affiliates in 22 different countries. Its resources come from individual donations, mainly from members of the Armenian diaspora. It now raises about USD 21,000,000 annually.

The Board of Trustees is the fund’s supreme governing body. Under the fund’s charter, the president of the Republic of Armenia is ex officio the president of the Board of Trustees. The board, which during its existence has had between 22 and 37 members, includes many prominent individuals and representatives of political, non-governmental, religious and humanitarian institutions from Armenia and the diaspora. In 2013 the board, in addition to the Armenian president Mr Sargsyan, comprised the former Armenian president Mr Kocharyan; the Armenian prime minister as well as the ministers of foreign affairs, finance and diaspora; the president, former president and prime minister of the “NKR”; the chairmen of the Armenian constitutional court, national assembly and central bank; four Armenian religious leaders, three representatives of Armenian political parties; a representative of the Union of Manufacturers and Businessmen (Employers) of Armenia; and representatives of four non-governmental organisations incorporated in the United States and Canada. The remainder of the 37person board was made up of 13 individuals from the Armenian diaspora. The composition of the Board of Trustees has been similar since the fund’s creation.

The Hayastan All-Armenian Fund has financed and overseen numerous projects since its establishment, including the construction or renovation of roads, housing, schools, hospitals as well as water and gas networks. In the mid to late 1990s it constructed the highway linking the town of Goris in Armenia with Lachin and with Shusha/Shushi and Stepanakert in NagornoKarabakh. In 2001 it financed the construction of the north-south highway in Nagorno-Karabakh. According to the fund’s annual report for 2005, it had paid approximately USD 11,000,000 during the year to various projects, of which about USD 6,100,000 had gone to projects in NagornoKarabakh. According to figures provided by the Armenian Government, the not fully complete expenditure for 2012 amounted to USD 10,700,000 in Nagorno-Karabakh and USD 3,100,000 in Armenia. Also according to Government figures, in 1995-2012 the fund allocated about USD 111,000,000 in total – or about USD 6,000,000 annually – to projects in Nagorno-Karabakh. In 1992-2012 it allocated USD 115,000,000 to projects in Armenia.

The applicants and the Azerbaijani Government claimed that residents of the “NKR” and the surrounding territories are routinely issued with Armenian passports. The ICG has stated that “Armenia has given a majority of the inhabitants its passports for travel abroad” (2005 report, referred to above, p. 5). The Azerbaijani Government also pointed to the possibility for residents of the mentioned territories to acquire Armenian citizenship. They referred to Article 13 (“Citizenship by Naturalization”) of the Law of the Republic of Armenia on Citizenship of the Republic of Armenia, which provides as follows:

“Any person 18 years of age and capable of working that is not an RA citizen may apply for RA citizenship, if he/she

1) has been lawfully residing on the territory of the Republic of Armenia for the preceding three years;

2) is proficient in the Armenian language; and

3) is familiar with the Constitution of the Republic of Armenia.

A person who is not an RA citizen may be granted RA citizenship without being subject to the conditions set forth in points 1) and 2) of the first part of this article, if he/she:

1) marries a citizen of the Republic of Armenia or has a child who holds RA citizenship;

2) has parents or at least one parent that had held RA citizenship in the past or was born on the territory of the Republic of Armenia and had applied for RA citizenship within three years of attaining the age of 18;

3) is Armenian by origin (is of Armenian ancestry); or

4) has renounced RA citizenship of his/her own accord after January 1, 1995.”

The Armenian Government, for their part, stated that both Armenia and the “NKR” have provisions for dual citizenship. Moreover, in accordance with a 24 February 1999 agreement with “NKR” on “the organisation of the passport system”, Armenia issues passports to residents of the “NKR” in certain circumstances. Article 1 of the agreement reads:

“The Parties agree that their citizens have the right to free movement and residence on the territory of each of the Parties.

Within the scope of this Agreement, until the Republic of Nagorno-Karabakh is internationally recognized, the citizens of the Republic of Nagorno-Karabakh willing to leave the territory of either the Republic of Nagorno-Karabakh or the Republic of Armenia may apply and obtain a passport of the Republic of Armenia.

The Parties agree that within the scope of this Article obtaining a passport of the Republic of Armenia by the citizens of the Republic of Nagorno-Karabakh does not mean granting a citizenship of the Republic of Armenia. Those passports can be used only for travel outside of the territory of the Republic Armenia and the Republic of Nagorno-Karabakh by the citizens of the Republic of Nagorno-Karabakh, and cannot be used as an identification document internal use in the Republic of NagornoKarabakh and in the Republic of Armenia.”

Regulations on the application of this agreement were also issued in 1999 and provide that an Armenian passport is issued to an “NKR” resident only in exceptional cases where the purpose for going abroad is medical treatment, education or another personal matter. The Armenian Government asserted that fewer than 1000 persons had been issued with a passport under the 1999 agreement.

The applicants and the Azerbaijani Government stated that the Armenian dram was the main currency in the “NKR”, whereas the Armenian Government maintained that the currencies accepted there included also euros, US dollars, pounds sterling and even Australian dollars.

The Azerbaijani Government pointed out that the National Atlas of Armenia, published in 2007 by the State Committee of the Real Estate Cadastre, adjunct to the Government of the Republic of Armenia and thus allegedly an official publication, consistently on various types of maps incorporated the “NKR” and the surrounding occupied territories within the boundaries of the Republic of Armenia.

The applicants and the Azerbaijani Government submitted that there is an Armenian Government policy of encouraging settlers to move to the “NKR” from Armenia and, more recently, Syria.

February 2005 saw the publication of the “Report of the OSCE FactFinding Mission (FFM) to the Occupied Territories of Azerbaijan Surrounding Nagorno-Karabakh (NK)”. The mandate of the mission was to determine whether settlements existed in the territories; military structures and personnel as well as political considerations were strictly outside that mandate. In regard to settlements in the district of Lachin, the report concluded:

“Generally, the pattern of settlers’ origins in Lachin is the same as in the other territories. Thus, the overwhelming majority has come to Lachin from various parts of Azerbaijan, mostly after years of living in temporary shelters in Armenia. A comparatively small minority are Armenians from Armenia, including earthquake victims. They heard about Lachin as a settlement options [sic] by word-of-mouth, through the media or from NGOs in Armenia and NK. There was no evidence of nonvoluntary resettlement or systematic recruitment.”

The report further stated:

“The direct involvement of NK in Lachin District is uncontested. NagornoKarabakh provides the Lachin budget and openly acknowledges direct responsibility for the district. Lachin residents take part both in local and NK elections.

While the links between Nagorno Karabakh and the Republic of Armenia remain outside the purview of this report, the FFM found no evidence of direct involvement of the government of Armenia in Lachin settlement. However, the FFM did interview certain Lachin residents who had Armenian passports and claimed to take part in Armenian elections.”


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicant was born in 1973 and is currently serving a sentence in Kandıra Prison.

On 17 July 1996 the applicant was wounded by a gunshot in the vicinity of a jewellery shop, which had been robbed by a group of people, allegedly including him. During the incident, shots were fired and the owner of the shop was shot dead. The applicant was unconscious when admitted to the emergency department of the hospital.

On 18 July 1996 the gendarmerie took statements from the applicant, which he did not sign. They noted that as the applicant’s hands were wounded and bandaged, he was unable to sign them. In these statements, the applicant admitted that he had been involved in the armed robbery. He stated, inter alia, that he had had a gun in his possession, which he had used during the robbery after the shop owner had begun firing. He also stated that he had committed the offence with two other people.

On 22 July 1996 the officers took further statements from the applicant and the applicant’s fingerprint was added in lieu of a signature. On the same day, he was discharged from the emergency department of the hospital. According to a document drafted and signed by a doctor, the applicant had undergone a thoracotomy and laparotomy while there.

On 23 July 1996 the applicant was taken to the gendarmerie for questioning. According to a document drafted by three officers, the applicant’s doctors had authorised his transfer to custody. On the same day, he was asked to identify the guns allegedly used in the incident. He was also asked to identify two other people who had been arrested in connection with the same robbery. According to reports drawn up by the officers on the same day, the applicant’s condition deteriorated at around 11 p.m. and he was therefore taken back to hospital.

On 25 July 1996 the applicant was brought before the public prosecutor and the investigating judge. According to a document containing his statements to the judge, the applicant did not ask to be represented by a lawyer. He once again admitted that he had been involved in the armed robbery, but denied the accusation that he had killed the owner of the shop. The applicant’s fingerprint was added at the end of the statements. On the same day, the investigating judge ordered his pre-trial detention.

While being questioned in custody and subsequently by the public prosecutor and the judge, the applicant was not represented by a lawyer.

On 9 August 1996 the public prosecutor at the Bakırköy Assize Court filed an indictment against the applicant and three other people, charging them with armed robbery and murder.

On 21 February 1997 the public prosecutor at the Istanbul State Security Court filed a second indictment against the applicant and eight other people, accusing them of being members of the THKP-C (Turkish People’s Liberation Party/Front) and of attempting to undermine the constitutional order by force.

On 27 September 1996 the applicant told the Bakırköy Assize Court that he had not been involved in the armed robbery in question. He submitted that he had been in possession of a firearm as he had enemies, and had used the gun as he had heard gunshots when he was in the vicinity of the incident. He had thought that he had been attacked by his enemies, and had therefore opened fire.

On 13 May 1997 in his defence submissions to the Istanbul State Security Court, the applicant challenged the veracity of his statements taken between 17 and 22 July 1996 and claimed that they had been taken by the gendarmerie while he was unconscious in hospital.

In decisions of 23 October 1997 and 29 April 1998 respectively, the Istanbul State Security Court and the Bakırköy Assize Court decided to join the two sets of criminal proceedings against the applicant with another case before the Istanbul State Security Court on the ground that there was a factual and legal link between the cases (1996/180E).

In a petition dated 18 June 1998 to the Istanbul State Security Court, the applicant’s representative contended that the applicant had been seriously injured on 17 July 1996, and that when his statements drafted by the security officers had been taken on 18 July 1996, he had been in such a state that he could not even sign them. The lawyer alleged that the security forces had made up a scenario implicating the applicant in the armed robbery and in terrorist-related activities.

On 28 June 1998 the applicant’s representative told the Istanbul State Security Court that the applicant had not known the people whose names had been mentioned in his statements and had denied their veracity, as their contents had been concocted by the security forces.

On 18 June 1999 Article 143 of the Constitution was amended, excluding military members from State Security Courts. As a consequence, the military judge sitting on the bench of the Istanbul Security Court was replaced by a civilian judge. Following the abolition of State Security Courts by Law no. 5190 of 16 June 2004, the case against the applicant was transferred to the Istanbul Assize Court.

On 20 March 2007 the applicant’s representative told the Assize Court that the applicant’s statements had been taken by the gendarmerie under torture.

On 30 May 2008 the Istanbul Assize Court convicted the applicant under Article 146 § 1 of the former Criminal Code of attempting to undermine the constitutional order by force and sentenced him to “aggravated” life imprisonment (without the possibility of parole). Basing its decision on ballistic, autopsy and other expert reports, statements taken from the accused, the shop owner’s cousin, who had intervened in the proceedings as a civil party, witnesses and all other evidence available in the case file, the court established that the applicant and three other people were accomplices in the armed robbery on behalf of the THKP-C and in murder.

On 11 March 2009 the Court of Cassation upheld the judgment of the first-instance court.

The relevant domestic law and practice in force at the material time can be found in the case of Salduz v. Turkey ([GC], no. 36391/02, §§ 27-31, 27 November 2008).


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque

The applicant was born in 1937 and lives in Vilnius.

In the 1930s the applicant’s father bought a plot of 1.975 ha of land in territory which is now part of the city of Vilnius. The property was nationalised in the 1940s.

In 1991 the applicant asked the Lithuanian authorities to restore his rights to his father’s land. In 1992 the Vilnius city authorities restored his property rights by conferring on him a right to obtain a plot no bigger than 0.2 ha to build an individual house (individualaus namo statybai); under the Law on Restitution in force at that time, 0.2 ha was the maximum area of land returnable in natura within the Vilnius city boundaries.

On 16 September 1999, the authorities transferred into the applicant’s ownership, without any payment, a plot of 0.18 ha in Vilnius city to build a house.

On 2 April 2001 the Constitutional Court held that the limiting of the return of land in natura, if vacant and consequently of no particular societal value, was in breach of Article 23 of Constitution, which protects the right to property.

Relying on the Constitutional Court’s ruling, on 4 May 2001 the applicant asked the Vilnius city authorities to stop distributing or selling the land which he claimed to be that of his father, given that he could now claim a bigger portion of that land. He enclosed land registry maps indicating the 1.975 ha plot of land that had previously belonged to his father.

The Vilnius city authorities replied on 25 May 2001 that, taking into account the guidelines set out in the Constitutional Court’s ruling, the Law on Restitution had to be amended as regards the restitution of the land within the city limits. Given that the applicant’s request related to the return of a plot of land in Vilnius in the actual place where his father had had his land (perduodant žemės sklypą turėtoje vietoje), his request could only be examined after the aforementioned legislation had been amended.

Following another unrelated request for restitution, by a decision of 30 May 2001 the Vilnius County Administration (Vilniaus apskrities viršininko administracija) transferred part of the disputed land, specifically plot no. 171 comprising 0.09 ha, to M.P. to build an individual house. M.P. later resold that plot to third parties.

On 2 April 2002, the Law on Restitution was amended to the effect that the maximum area of land returnable in Vilnius city, provided that that land was not State redeemable, was 1 ha.

Relying on the amended Law of Restitution, on 21 June 2002 the applicant asked the Vilnius city authorities to return to him the remaining part of the plot, 0.82 ha (that is to say, 1 - 0.18 ha), in his father’s land.

In their internal correspondence of January and October 2003 the Vilnius city authorities concluded that the land could not be returned to the applicant in natura because it had been built upon and it also contained a forest of State importance. The land thus had to be bought by the State and the applicant was to be compensated by other methods as provided for by the Law on Restitution.

On 31 July 2003 the National Land Service (Nacionalinė žemės tarnyba) informed the applicant that the land formerly owned by his father was State redeemable land. However, having examined the land registry maps of the land owned by the applicant’s father, the National Land Service also noted that only part of that land had been divided into plots for the construction of houses. In that case, the unoccupied land could thus be returned in natura. The National Land Service thus notified the applicant that it had requested the Vilnius authorities to re-examine the availability of unbuilt land one more time.

In August 2003 the Seimas (parliamentary) Ombudsman, the National Land Service (see paragraph 16 above), and in March 2005 a prosecutor, found that the transfer of plot no. 171 to M.P. by the Vilnius authorities had been negligent and in breach of the law, because this had been done after the Constitutional Court’s ruling of 2001; it was the applicant who had priority rights to that plot. However, given that the third parties who had acquired plot no. 171 had done so in good faith, the prosecutor ruled that the plot could not be taken away from them and returned to the applicant.

In January 2004 the Vilnius county authorities informed the applicant that his father’s land was to be bought by the State. The applicant was also informed that he could receive securities to the value of 9,984 Lithuanian litai (LTL, approximately 3,180 euros (EUR)) for each hectare of his father’s land as compensation.

In March and July 2004, the National Land Service confirmed the above value for 1 ha of land in Vilnius as had been established by the Methodology set out by the Government (hereinafter – ‘the Methodology’). It also underlined that in 1998 the Constitutional Court had upheld that Methodology (see paragraphs 45-47 below). The Methodology set out the average price of the land paid in the course of compulsory purchases by the State for the entire territory of a city, taking into account that city’s size and significance. Lastly, the applicant was informed that up to that date 88% of persons had been compensated in accordance with the Methodology set out by the Government. Accordingly, it would be against the principle of equality if others, including the applicant, were to be compensated by changing the Methodology.

On 24 March 2005 the applicant asked the authorities to compensate him for 0.73 ha of land (that is to say, 0.82 - 0.09 ha) by allocating another plot in Vilnius city to him. Relying on information from the Real Estate Registry, the applicant noted that the indexed value (indeksuota sklypo vertė) of the 0.09 ha (plot no. 171) sold to M.P. was LTL 22,896 (approximately EUR 7,290). He asserted that the market value of the other plot was even higher. Therefore, it was not fair to conclude that 1 ha of land in Vilnius city could be compensated by a sum of LTL 9,984. The applicant thus asked the authorities to pay him LTL 22,896 for plot no. 171 and “to quickly return him the remaining 0.73 ha of land in another place in Vilnius city or with a decent cash settlement (grąžinti likusią priklausančią man 0.73 ha žemę kitoje vietoje Vilniaus mieste greitu laiku arba užmokėti pinigais žmogišką kainą)”.

In reply to the applicant’s complaint, on 3 May 2005 the authorities acknowledged that he was “a candidate (pretendentas) for restoration of the property rights to 1.795 ha of his father’s land”. The authorities underlined the applicant’s preference, as expressed in his request, to obtain compensation in money or to obtain another plot of land in Vilnius [city]. Pursuant to the applicable legislation, the authorities asked the applicant to specify how he wished to proceed with the restitution, given that the land his father had once owned in Vilnius city was to be bought by the State and thus the exact same plot could not be returned to him. According to the domestic law as in force at that time, the applicant could either choose to obtain another plot of land in a rural area or pecuniary compensation (either in securities or by having his liabilities to the State annulled).

In reply to another application by the applicant, on 13 October 2005 the Vilnius County Administration reiterated that it was not possible to return the applicant’s father’s exact same land in Vilnius city. The applicant was requested to choose another method of compensation provided for in Article 16 § 9 of the Law on Restitution. He was also notified that information about available plots of land in Vilnius city could be found on the internet site of the Vilnius County Administration.

On 1 February 2006, and in reply to another complaint by the applicant, the National Land Service reiterated that he had to choose how he wished to be compensated for the land bought by the State, as provided for in Article 16 § 9 of the Law on Restitution. The National Land Service noted the Ombudsman’s conclusion that land had been transferred to M.P. in breach of the applicant’s rights, as well as the prosecutor’s conclusion that it was not possible to annul that transfer.

The applicant then started court proceedings, claiming that the State should pay him the market value for the 0.09 ha plot of land, that had been transferred to M.P., which the applicant noted to have an average market value (vidutinė rinkos vertė) of LTL 162,000 (approximately EUR 46,900) as established in 2001 by the Real Estate Registry (also see paragraph 32 below).

He also claimed that the State should pay market-value compensation for the unreturned 0.73 ha of land in Vilnius, which in his view was worth LTL 1,314,000.

By a decision of 15 June 2006 the Vilnius Regional Administrative Court dismissed the claim as unfounded. The court acknowledged that on 30 May 2001 M.P. had been granted a 0.09 ha plot of land on the applicant’s father’s former holding in contravention of the law, because this was done after the Constitutional Court’s ruling of 2 April 2001. That being so, the documents in the court’s possession confirmed that the applicant’s father’s land belonged to land destined to be bought by the State, because it contained privately owned plots of land with houses or forests of State importance as provided for in Articles 12 § 6 and 13 of the Law on Restitution. The court did not specify which part of the applicant’s father’s plot belonged to either of those categories.

The first instance court therefore held that the applicant should be compensated for the remaining part of his father’s land according to the Methodology set out by the Government. That methodology had been upheld by the Constitutional Court in 1998. The domestic law did not provide that the land bought by the State should be compensated by paying Real Estate Registry estimated values.

By a ruling of 15 February 2007, the Supreme Administrative Court fully upheld the lower court’s decision. It observed that both the 0.09 ha plot and a 0.73 ha plot were part of land due to be bought by the State. Consequently, the applicant was to be compensated for those plots according to the rules set out in Articles 12 and 16 § 9 of the Law on Restitution. The latter provision listed the ways the applicant had at his disposal to obtain restitution; it was up to the applicant which method to choose. The court observed an abundance of documents in the case file which indicated that the applicant wished to be compensated in cash. However, the court stated that the applicant’s position was not entirely concrete and clear. Accordingly, and given the principle of inseparableness of rights and obligations, the applicant had to submit a request to the State expressing concretely how he wished to be compensated.

Lastly, the Supreme Administrative Court underlined that no market-value compensation for land being compulsorily bought by the State had been provided for in the Methodology.

In October 2009 the Vilnius County Administration wrote to the applicant stating that his name on the list of persons awaiting plots for building a house in Vilnius had been moved from 228th to 4,864th because he had already been granted a plot of land to build a house in 1999.

On 1 February 2012, Article 16 § 9 (6) the Law on Restitution was amended by providing, for the first time, for payment in cash (pinigais) as one of the ways of compensating for land compulsorily bought by the State.

Five days later, on 6 February 2012, the National Land Service wrote to the applicant informing him of this new opportunity and asking him to state how he wished to be compensated, until the statutory deadline to express such choice, namely 1 June 2012.

On 24 May 2012 the Real Estate Registry issued the applicant with a document to the effect that the average market value (vidutinė rinkos vertė) of plot no. 171 was LTL 162,000, according to its 2001 estimate.

On 25 May 2012, the applicant wrote to the Court saying that in April 2012 he was 4,606th on the waiting list of persons whose property rights were to be restored in the city of Vilnius.

On 7 June 2012 the Vilnius city authorities informed the applicant that, in accordance with the Methodology approved by the Government, the indexed value (indeksuota vertė) of the 1.795 ha of land to be bought by the State was LTL 17,921. The laws did not allow compensation for this land by market-value payment. The authorities also reminded the applicant that, in accordance with Article 21 § 3 of the Law on Restitution, should a citizen fail to make a choice as to how he or she wished to be compensated for the land bought by the State, or if they favoured a method not provided for by the Law on Restitution, he or she would be compensated in cash (pinigais).

In reply to the applicant’s request, on 3 October 2012 the National Land Service confirmed that the unreturned plot of land to which the applicant could still obtain restitution measured 1.795 ha (nustatyta, kad žemės plotas, į kurį liko atkurti nuosavybės teisę, sudaro 1,795 ha). It reiterated to the applicant that his father’s land had been assigned to the land which should be bought out by the State. That notwithstanding, the National Land Service asked the Vilnius city municipality to verify whether there was the possibility to constitute a plot of land within the overall parcel that had belonged to the applicant’s father. Only if there was an unoccupied plot could the National Land Service restore the applicant’s right in natura.

In reply to the applicant’s request to grant him a plot of land, if it was possible to delimit one within the territory that had once belonged to his father, on 5 July 2013 Vilnius municipal authorities informed him that the entire plot was already occupied, namely it contained plots of land registered in private ownership, those plots being necessary to use buildings and houses. It also contained some forest land that was listed as being of State importance. For that reason, it was not possible to form a plot within the applicant’s father’s land. In accordance with Articles 12 and 13 of the Law on Restitution, this exact land could not be returned as it was due to be bought by the State.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in 1950 and lives in Nova Gorica.

On 29 October 2002 the applicant lodged a civil action against company X, her former employer, seeking payment of 3,285.89 euros (EUR) and statutory default interest in respect of contributions made by her into the employee share scheme (trajne vloge delavca). On 24 May 2011 the Nova Gorica Local Court (“the Local Court”) dismissed her claim and on 13 June 2011 the judgment was served on her lawyer.

The time-limit for appealing against the judgment expired at midnight on 28 June 2011. At 6.54 p.m. on that day the applicant’s lawyer sent a document of six pages by fax to the Local Court. The next day, after the expiry of the time-limit, the applicant’s lawyer sent the appeal against the first-instance judgment, consisting of six pages, by registered mail. On 12 July 2011 the Local Court rejected the appeal as out of time. It held that the applicant had lodged her appeal on 29 June 2011, which was after the time-limit.

On 30 July 2011 the applicant appealed against this decision, arguing that she had lodged her appeal by fax within the prescribed period. In this connection, she submitted a fax confirmation page according to which on 28 June 2011 at 6.54 p.m. her lawyer had sent a six-page document to the Local Court’s fax number.

On 12 August 2011, at the request of the Koper Higher Court (“the Higher Court”), the competent judge of the Local Court enquired about the faxes received by the registry of that court on 28 June 2011 from 6 to 7 p.m. The confirmation page showed that the Local Court had received a document of six pages from the applicant’s lawyer at 6.59 p.m. On 24 August 2011 the competent judge was informed that the fax from the applicant’s lawyer had been saved in the fax machine’s memory, but had not been printed out. Subsequently, this information was sent to the Higher Court.

On 14 November 2011 the Higher Court dismissed the appeal, noting that the Local Court had received the documentation that had been lodged by mail only on 29 June 2011. It held that the appeal allegedly lodged on 28 June 2011 by fax would have been regarded as within the prescribed time-limit only if it had been delivered to the court before its expiry. The burden of proof that the appeal had been lodged in due time was on the applicant. The Higher Court acknowledged that the confirmation page submitted by the applicant indeed showed that on 28 June 2011 the applicant had sent a document of six pages by fax. However, the confirmation page made no reference to the type of document sent, its content and to which case it referred.

On 5 June 2012 the applicant lodged an appeal on points of law. She pointed out that section 112 of the Civil Procedure Act allowed the submission of an application by fax and that according to the existing case-law of the Supreme Court an application was deemed to be submitted in due time if delivered to the competent court before the expiry of the time-limit regardless of how it was subsequently handled by the court, which was a matter of the court’s internal organisation. The applicant submitted that the Local Court had received her appeal by fax in due time but then most probably failed to print it out and the document had automatically been deleted from the fax machine’s memory. Hence, she argued that the date when the fax had been sent should be considered as the date the appeal had been lodged and that she should not be made to bear the burden of proof in a case where the document had not been printed out by the court. She further emphasised that a timely delivery should not have any negative consequences for the parties to the proceedings. Furthermore, as regards her failure to prove the content of the fax that had been sent to the Local Court on 28 June 2011, the applicant submitted: firstly, that the confirmation page from her lawyer’s fax machine had showed the date of the transmission, the number of pages sent and the time it had taken to deliver the document to the receiving machine; secondly, on the following day, 29 June 2011, the applicant had lodged the relevant document by registered mail which, according to her, proved that the document in question was in fact the appeal against the judgment of 24 May 2011. The applicant added that, according to information given to her by a telecommunications company and a fax-machine manufacturer, it was not possible to prove the content of a document sent by fax as those transmissions were encrypted.

On 20 June 2013 the Supreme Court dismissed the applicant’s appeal on points of law. It referred to its decision of 4 April 2013 (II Ips 603/2009 and II Ips 718/2009) in which it had held that proof that a fax was sent did not necessarily mean proof of receipt of the document. In the Supreme Court’s opinion, there was a possibility that the court would not receive the relevant document in due time because of faults in the telecommunications network or similar technical reasons (lack of paper, an empty ink cartridge, the machine shutting down, and so on). Such a risk was borne by the applicant in the same manner as if the document were sent by regular – as opposed to registered – mail, whereby the risk of late receipt of a motion was borne by the sender. Since the applicant had failed to prove the content of the document sent by fax on 28 June 2011, the Supreme Court confirmed that the Higher Court had correctly taken into consideration only the appeal sent by registered post the next day.

On 18 October 2013 the applicant lodged a constitutional complaint in which she reiterated the arguments raised before the Supreme Court.

On 11 November 2013 the Constitutional Court dismissed the constitutional complaint for lack of significant disadvantage and for not raising an important constitutional question. On 15 November 2013 this decision was served on the applicant.

Meanwhile, on an unspecified date, the applicant requested that the Local Court reinstate her case. On 7 February 2012 the Local Court dismissed the applicant’s request. The applicant lodged an appeal which she subsequently withdrew.