In December 2017, the European Court of Human Rights (ECHR) issued judgments closing two cases: Chiragov and others v. Armenia and the Sargsyan v. Azerbaijan. These cases had been pending since 2006. Armenia and Azerbaijan were ordered to pay a compensation in the amount of €5000 (~$6000) for the continuous violation of access to the properties of the plaintiffs. Chiragov’s property is situated in Lachin – now Berdzor under Armenian control. Sargsyan’s property is in the former Shahumyan, now Goranboy district of Azerbaijan. Mr. Chiragov and Mr. Sargsyan are among hundreds of thousands of Azerbaijani and Armenian internally displaced persons (IDPs) and refugees displaced from their homes at the time of the military hostilities of the early 1990s.
Vahe Grigoryan, an attorney and international human rights consultant at the UK-based European Human Rights Advocacy Center who served as an advisor to the applicant in the Sargsyan case, discussed potential ramifications with Taline Papazian, fellow at the USC Institute of Armenian Studies.
TP: Two symmetric cases were taken into consideration in the same process by the ECHR: Chiragov v. Armenia and Sargsyan v. Azerbaijan. What are the key aspects of these cases?
VG: The Chiragov case, a group of 6 IDPs in Azerbaijan, was launched in April 2005. The Sargsyan case, the one of an Armenian refugee, was launched in August 2006. I think that the Court looked simultaneously at these two cases so that no doubt would be cast on its impartiality and to try to remain politically neutral about the Karabakh conflict. The cases also stem from the context of the same conflict and relate mostly to the same rights of the applicants.
There were three decisions issued in each of these cases. First came the admissibility decision saying that the ECHR found the applications admissible for further examination on the merits. Second, in 2015, came the judgments on merits of the cases: here the ECHR found that the states of Armenia and Azerbaijan respectively were responsible for depriving the applicants of access to their properties for more than twenty years insofar as they are responsible for finding a resolution to the Karabakh conflict. And, finally, in 2017, came the judgment on compensation, which is asking the Armenian and Azerbaijani states to pay a certain amount to the applicants to compensate for the continuous deprivation of access to their properties.
I can say that all the hearings were appointed mostly on the same day for each stage since the Court wanted to manifest that it is looking at the cases together. And in both cases, the states of Armenia and Azerbaijan, when appearing as third parties to the case, strongly backed the applicants since both states thought -rather naively- that the ECHR was offering them a stage to voice historical complaints against each other. But at the end of the day, the ECHR is not judging historical claims: it has issued very strong judgments on the responsibility of Armenia and Azerbaijan, both members of the Council of Europe, for not finding a solution to the Karabakh conflict and hence to the situation of refugees and IDPs, in particular the applicants.
TP: The judgments are partly symmetrical but there are also differences. Can you highlight them?
VG: Yes, they are partly symmetrical in the sense of remedying the rights of the applicants in both cases, pointing on their property rights trampled for more than 20 years. But they are not mirroring cases in any other sense, especially not politically. Looking from a political standpoint, the outcome of the Chiragov case is way more troublesome for Armenia compared to that of Sargsyan for Azerbaijan.
The stress here is on the matter of jurisdiction: Azerbaijan was found responsible for its wrongdoing on its own territory. On the other hand, what does the Chiragov case say? Armenia was reckoned as having responsibility in terms of human rights violations over the entire territory of Artsakh, including Lachin. We are in a situation where Armenia has in essence been judged as responsible for whatever is happening in Nagorno-Karabakh, due to its extraterritorial jurisdiction over this territory.
The terms that the Court used is that the assistance of the Armenian government to the local administration was of such considerable scale and amount that the local administration would not exist in its actual form if not the assistance from Armenia: it speaks of “effective control” over the territory, and the Court does not even admit that there is a local administration as such playing any role at all. This has crucial political consequence: it means that the Armenian claim about three-party negotiations on Nagorno-Karabakh has no substance in the eyes of the ECHR from a legal perspective.
Let me emphasize here that the Court’s judgment on such matter based its appreciation on a number of elements, including statements from former high ranking Armenian state officials.
Second, from the point of view of economic consequences too, the judgment may be heavier for the Armenian side than for Azerbaijani one.
TP: There have been few reactions to this judgment in the Armenian media and no discussion at large. Why in your opinion?
VG: There are a number of reasons. The following list is not exhaustive.
First, there has been massive propaganda on each side to say that the judgments were victories for each. No journalist and even no lawyer would go into the details of these judgments (apart from very few in Armenia), which are hard to understand. So the governments found themselves in privileged situations to create their propaganda messages, without having real counterarguments from knowledgeable parties, nor healthy disputes.
Secondly, the media is not professional enough, in the sense that they do not have journalists who do in-depth analysis and investigation.
Thirdly, there is the issue of implementation of the judgment: up until now, the government has no translation of the judgment, which of course is compulsory. If you don’t translate, you deprive the applicant from implementation and you are not engaging yourself in the implementation of all measures of general character.
Let me emphasize that these judgments are first category judgments. Their impact from an international legal point of view reach wider than Armenia and Azerbaijan: both cases contributed to development of international public law on the matters of extraterritorial jurisdiction and protection of the rights of IDP’s and refugees in conflict zones. And it has so far not been translated, neither the judgment on merit nor the one on just satisfaction.
I personally think the Armenian government is delaying because it wants to avoid discussion into what is felt as a difficult matter. Meanwhile, these judgments have been transferred to the Committee of Ministers of the Council of Europe who supervises the implementation over them. The government cannot delay forever. Armenia is expected to come up with an action plan regarding the implementation of the judgment.
A fourth component is the post-April 2016 War atmosphere. Before that, liberals in Armenia were speaking freely about the conflict and different aspects of it. But I feel now that people are reluctant to discuss the problem’s controversial aspects. And it is very human: war is always capable of silencing reason.
TP: How would you see implementation of this judgment?
VG: First, let me underline that I strongly think these judgments should be implemented, in Armenia and in Azerbaijan. It is the first time that an international legal actor, and one of paramount standing, is saying something about this conflict in an intervening manner. As far as it is known from public sources, the IDP’s and refugees issue is one of the three main issues on the table of negotiations about the Nagorno-Karabakh conflict: security; status; and the return of IDP’s and refugees. I would say this one is the trickiest, because if the first two depends on the will of the governments, this one depends also on social and economic environments that the governments must create to make it possible.
Note that the court allotted €5,000 for property losses and €30,000 for legal expenses. It may seem unfair as being very low, but both governments and especially the Armenian one, must take note that this judgment is not compensation for the property, but for continuous lack of access to the property, recognizing the applicants as continuous title holders of the property.
So Armenia should find a way to meet the criteria of these judgments: for instance, establish a commission and start working on this, in order to address all applicants who applied to the ECHR and whose cases may be admissible.
The Armenian government would then appear at the front stage of implementation of judgment of an international tribunal and as a faithful subject of established international order. I believe there is nothing impossible for people really committing themselves to solving problems.