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MINISTERS’ DEPUTIES |
Notes on the Agenda |
CM/Notes/1514/H46-10 |
5 December 2024 |
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1514th meeting, 3-5 December 2024 (DH) Human rights
H46-10 Sargsyan v. Azerbaijan (Application No. 40167/06) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)1018, DH-DD(2022)1185, DH-DD(2017)265, CM/Del/Dec(2024)1507/H46-5 |
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Application |
Case |
Judgment of |
Final on |
Indicator for the classification |
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40167/06 |
SARGSYAN |
16/06/2015 12/12/2017 |
Grand Chamber |
Complex problem |
Case description
The case concerns a refugee of Armenian origin who was forced to flee from his home during the active military phase of the Nagorno-Karabakh conflict (1992-94). In particular, the applicant fled from the village of Gulistan when it came under military attack in June 1992. The Court found that Azerbaijan, as the internationally recognised territorial State, had jurisdiction (§ 150). The Court accepted that the Azerbaijani authorities’ refusal to grant civilians access to the village was justified by safety considerations. However, the fact that this refusal was not accompanied by any measure to restore the applicant’s rights in respect of his property and home or to provide him with compensation for the losses suffered, together with the lack of any remedy, placed and continued to place an excessive burden on him (continuing violations of Article 1 of Protocol No. 1, Article 8 and Article 13 from 15 April 2002, when the Convention came into force in respect of Azerbaijan). The Court indicated that “pending a comprehensive peace agreement it would appear particularly important to establish a property claims mechanism, which should be easily accessible and provide procedures operating with flexible evidentiary standards, allowing the applicant and others in his situation to have their property rights restored and to obtain compensation for the loss of their enjoyment” (§ 238).
In its subsequent judgment on just satisfaction, the Court held that the applicant could be compensated for the loss of income from his land in Gulistan and his increased living expenses in Yerevan (from 15 April 2002 onwards), as well as for non-pecuniary damage caused by his suffering and distress. It considered that the pecuniary and non-pecuniary damages were closely related and incapable of precise calculation. It awarded the applicant EUR 5,000 to cover all heads of damage.
Status of execution
On 6 March 2017, the authorities of Azerbaijan submitted an action plan (DH-DD(2017)265) reporting that, by a decision of the Cabinet of Ministers of 26 February 2014, the government had established a compensatory mechanism, namely a Working Group on Evaluation of Loss and Damages. The group consisted of independent experts in economics and real estate and was chaired by an Azerbaijani Member of Parliament.
In response, the Armenian authorities submitted a communication on 8 March 2017 (DH-DD(2017)277), indicating that the above Working Group could not be considered an easily accessible property claims mechanism as required by the judgment.
The Committee of Ministers first examined the execution of this case during its 1280th meeting (March 2017) (DH), when it took note with interest of the action plan provided by the Azerbaijani authorities and invited them to provide detailed information on how the Working Group responded to the Court’s recommendation to establish a property claims mechanism. The Committee also invited the authorities to cooperate fully with the Secretariat.
Between 27 September and 10 November 2020, hostilities resumed, culminating in the Trilateral Statement of the leaders of Azerbaijan, the Russian Federation and Armenia of 10 November 2020. During this period, the Committee postponed its examination of the case, although consultations continued between the Secretariat and the Azerbaijani authorities.
In May and September 2022, the authorities of Azerbaijan and the Secretariat held consultations on the measures required to execute this judgment, as well as that of Chiragov and Others v. Armenia, including the payment of the just satisfaction awarded by the Court in these cases. At the request of the authorities, in July 2022 the Secretariat prepared a draft Memorandum of Understanding (MoU) between Azerbaijan and the Council of Europe setting the terms and conditions for payment of the just satisfaction through a Council of Europe bank account. It provides for the simultaneous payment of the funds to the applicant as well as the payment to the applicants in the case of Chiragov and Others v. Armenia (on the basis of the separate MoU between Armenia and the Council of Europe).
In a communication dated 7 November 2022 (DH-DD(2022)1185), the Azerbaijani authorities recalled that the Court had, from the outset, intended to strike a delicate balance between the present case and that of Chiragov and Others v. Armenia, and that they expected the Committee to continue examining the cases conjointly and to preserve this balance in the process of execution. Thus, in the view of the Azerbaijani authorities, progress in the execution measures required for the Sargsyan case is largely dependent on and conditioned by advancement of the execution of the Chiragov and Others case.
The authorities also stressed that they had engaged constructively in several rounds of consultations with the Secretariat, confirming their readiness to take measures for the execution of the present case, as summarised below.
Regarding the payment of the just satisfaction, during the above-mentioned consultations with the Secretariat held in May 2022, the authorities expressed their readiness to pay the just satisfaction awarded by the Court to the applicant, together with the default interest accrued, using the Council of Europe as an intermediary for payment. Subsequently, during further bilateral consultations in September 2022 and in writing in the above communication, the authorities of Azerbaijan confirmed their acceptance of the terms of the MoU and their readiness to sign it. They indicated that they would liaise with the Secretariat to determine the exact date of transfer of the sum to the Council of Europe’s account, pending the receipt of notice of approval from Armenia of the MoU regarding the case of Chiragov v. Armenia.
Further consultations took place between the authorities and the Secretariat in August 2023 and May 2024, including on the detailed content of the draft MoU, following a request from Armenia to clarify one aspect.
In a letter dated 23 August 2024 (DH-DD(2024)960), the Armenian authorities expressed their readiness to sign the MoU with a view to paying the just satisfaction in the Chiragov v. Armenia case.
In response, in a letter dated 4 September 2024 (DH-DD(2024)1018), the authorities of Azerbaijan recalled that the draft MoU elaborated by the Secretariat in consultation with both sides had been on the table for about two years, and during this time, the Armenian authorities had delayed in clearly committing to this MoU under various pretexts. Moreover, some significant changes had occurred on the ground and in the overall situation in the region, which necessitated further assessment by the Azerbaijani authorities of the possible implications and ramifications of this MoU. There was also a need for further consultations with the Secretariat to clarify the temporal and geographical scope of the possible future use of similar MoUs, along with the possible impact of the payment of the just satisfaction on the implementation of the general measures in the Chiragov case.
At the time of drafting of these Notes, no further information has been provided by the Azerbaijani authorities.
Other individual measures: the authorities have stated that they are not in a position to guarantee safe access to the village of Gulistan and consider that other individual measures are closely linked to the general measures.
Regarding general measures, the authorities expressed their readiness to continue consultations with the Secretariat to explore principles and modalities of the establishment of an efficient property claims mechanism in compliance with criteria established by the Court. To date, the consultations have included discussion of the scope of the general measures required by the judgment, in particular the category of persons who should be entitled to bring claims. The authorities consider that, in the context of the Sargsyan case, “others in the applicant’s situation” includes persons of Armenian ethnicity who had to flee their homes and properties during the active military phase (1992-94) of the conflict and who, like the applicant, formerly lived in Gulistan village or and possibly other settlements inhabited by ethnic Armenians situated in proximity to the former contact line.
Last decision of the Committee: At the 1507th meeting (September 2024) (DH), the Committee noted the indication by the authorities of Azerbaijan that they required more time for assessment of the possible implications of the text of the MoU prepared by the Secretariat, to enable payment of the just satisfaction awarded by the Court and default interest accrued, to take place through a Council of Europe bank account. The Committee strongly underlined the unconditional obligation under Article 46 § 1 of the Convention on respondent states to fully and effectively execute all judgments against them, including their unconditional obligation to pay the sums of just satisfaction awarded by the European Court. Therefore, in the event that the consultations on the draft MoU did not rapidly produce concrete results, the Committee encouraged the authorities of Azerbaijan to proceed with the payment of the just satisfaction sums directly to the applicant’s next-of-kin.
Communications from the applicants and NGOs
The applicant and several NGOs have submitted communications under Rule 9, underlining the delay in the execution of both individual and general measures in this case and calling on the Committee of Ministers to address these points. For a detailed summary of the Rule 9 communications submitted since the beginning of the supervision process, see the Notes for the 1507th meeting.[1] Most recently, on 22 October 2024, the European Human Rights Advocacy Centre (EHRAC), acting as the applicant’s representative, submitted a Rule 9.1 communication (DH-DD(2024)1220), complaining about the gross delay in the payment of just satisfaction and criticising the position of the Azerbaijani authorities regarding the draft MoU. They supported the possibility of direct payment to the applicant’s next-of-kin, if the Azerbaijani authorities no longer want to make use of the MoU.
Analysis of the Secretariat
In the course of the consultations between the Azerbaijani authorities and the Secretariat, and also between the Armenian authorities and the Secretariat concerning the execution of the Chiragov v. Armenia case, the possibility was discussed of the authorities of Azerbaijan and Armenia each signing an MoU with the Council of Europe providing for the simultaneous payment of the just satisfaction owing in the Sargsyan and Chiragov (just satisfaction) judgments through a Council of Europe bank account. Draft MoUs were therefore prepared by the Secretariat and sent to the authorities. They regulate in detail the modalities of the payment by Azerbaijan and Armenia of the just satisfaction and default interest, and the conditions for the release of these sums by the Council of Europe to the applicants.
By a letter dated 3 November 2022, Azerbaijan indicated a readiness to sign, but only if this was reciprocated by Armenia. By a letter of 23 August 2024 (DH-DD(2024)960), the Armenian authorities also confirmed their readiness to sign the MoU. However, on 4 September 2024 the Azerbaijani authorities indicated that they required more time to assess the possible implications of the MoU, and at the time of drafting of these Notes they have provided no further information.
The payment of just satisfaction awarded by the Court is an unconditional obligation, that is important to fulfil in the nearest future. Therefore, the Committee could encourage again the authorities of Azerbaijan either to rapidly complete their consideration of the implications of the signature of the MoU and confirm their readiness to sign it, or to proceed with the payment of the sums owing under the Sargsyan (just satisfaction) judgment directly to the applicant’s next-of-kin.
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Financing assured: YES |