International Legal Regulations Related to the Preservation of Property Rights and Fair Compensation of Forcibly Displaced Armenians of Nagorno-Karabakh

Sona Hayrapetyan, Lawyer, Lecturer at the Faculty of Law, Yerevan State University

As a result of the war unleashed against Nagorno-Karabakh on September 19-20, 2023, more than 120,000 ethnic Armenians were forcibly displaced from their historical homeland. As a result of the displacement, the entire territory of Nagorno-Karabakh fell under the full control of the Republic of Azerbaijan, and the Armenians of Nagorno-Karabakh have been deprived of the opportunity to fully manage, possess and use the property they own by property rights for more than a year. We consider it necessary to note that Azerbaijan is a member state of the European Council, which means that it has undertaken a number of international obligations, including the protection and respect of the right to property of individuals.

As a result of the forced displacement, among other vital rights, the property rights of the Armenians of Nagorno-Karabakh have also been violated, which are stipulated and guaranteed by numerous international legal documents, including Article 1 of Protocol No. 1 to the European Convention on Human Rights. According to Article 1 of Protocol No.1 to the Convention, every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

When considering the issue of deprivation of the property rights guaranteed under Article 1 of Protocol No. 1 to the Convention and the failure to provide compensation, the European Court of Human Rights emphasized that no purpose can justify depriving people of the opportunity to enjoy their property and not providing any compensation for that interference. That is, states cannot simply deprive people of their property rights and not provide any form of compensation.

As a result of military operations and under the immediate threat of deprivation of the right to life, the Armenians of Nagorno-Karabakh were forced to leave their homeland, leaving behind the property they owned with documents confirming their property rights provided by the authorities and competent bodies of Nagorno-Karabakh. To this day, the Armenians of Nagorno-Karabakh are continuously deprived of the opportunity to return and use their property under the immediate threat of security.

It is important to especially emphasize that the fact of continuous violation of rights is also confirmed by the fact that the Armenians of Nagorno-Karabakh are deprived of the opportunity to raise claims before domestic judicial bodies for violation of rights and restoration of their previous status, as well as appropriate compensation. It is obvious that the domestic judicial bodies of Azerbaijan are not effective means of judicial protection for the Armenians of Nagorno-Karabakh. The latters cannot file a claim against the Republic of Azerbaijan in the judicial bodies of the Republic of Armenia.

It is necessary to note that in 2023, the Republic of Armenia filed the 4th interstate complaint against the Republic of Azerbaijan to the European Court of Human Rights with the demand to protect the property rights of the Armenians of Nagorno-Karabakh, within the framework of which the European Court will also determine the limits of providing compensation to the Armenians of Nagorno-Karabakh in a collective sense, as well as the implementation procedure: through the formation of a general commission or through the application of an individual complaint procedure to receive fair compensation. This means that those forcibly displaced Armenians of Nagorno-Karabakh who have not individually filed a complaint to the Court will not be deprived of the opportunity to receive appropriate compensation for the violation of their rights, however, in any case, this issue will be finally decided by the European Court.

The question of what constitutes the subject-matter of the protection of property rights in terms of the Convention is also of key importance. According to the established case law of the European Court, the applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his “possessions”. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. For an “expectation” to be legitimate, it must be based on a legal provision or a legal act bearing on the property in question. In essence, when considering Article 1 of Protocol No. 1 to the Convention, the concept of “property” is interpreted very broadly. In particular, Article 1 protects movable and immovable property, tangible or intangible interests, such as shares, patents, pension rights, rental rights and the resulting loss of profit, etc.

From the perspective of properly ensuring the protection of the property rights of the Armenians of Nagorno-Karabakh, it is important to know and take into account that it is necessary to preserve all documents that in any way confirm or contain prima facie evidence of the rights of the Armenians of Nagorno-Karabakh to the property, since a person who complains that his property rights have been violated must first prove that this right existed.

Accordingly, the issue of time limits for filing a complaint to the European Court is also a matter worthy of special attention. According to the positions stipulated by the case law of the European Court, in cases where the violation is of a continuous or ongoing nature, that is, it does not occur once, but continues periodically, such as the Armenians of Nagorno-Karabakh being deprived of their property rights for more than a year, therefore, at any time, individuals can file an individual or group complaint to the European Court. The concept of a “continuous situation” refers to circumstances in which the applicants are the victims of continuous acts by or on behalf of the State. Where the alleged violation involves a continuous situation against which there is no legitimate domestic remedy, the four-month period begins to run only when that situation ends. As long as the continuous situation goes on, the four-month rule is not applicable.

The Court expressed a similar position regarding time limits and recognized the concept of continuing violation in the context of property rights, regarding similar circumstances, in the case of “Loizidou v. Turkey”. In this case, the applicant was the owner of a property in Northern Cyprus, which she had been forced to abandon after the Turkish occupation of that part of the island in 1974. Considering that the applicant continued to be the owner of her house by documents, inter alia, the Court noted that since 1974 she had effectively been deprived of the right to use and have access to her property, as well as all opportunities to possess and use it. Thus, the continued denial of access was tantamount to a violation of the rights under Article 1 of Protocol No. 1.

Summarizing the above, we consider it necessary to highlight the sequence of steps that need to be taken to ensure that the Armenians of Nagorno-Karabakh receive compensation for the violated property rights, both in the immediate and long-term perspective, despite the 4th complaint filed by the Republic of Armenia against the Republic of Azerbaijan to the European Court.

Accordingly, these actions include:

  1. the preservation of all documents that serve as evidence of or confirm ownership, which may include property books, documents, purchase contracts, tax records, notices, and any legal documents issued by the authorities of Nagorno-Karabakh. Such documents serve as proof of ownership and will be necessary for any legal process or claim for compensation, whether through individual or collective proceedings. 
  2. Documents on forced displacement, in particular temporary residence documents provided by the Republic of Armenia or copies thereof, which confirm their forced displacement. This will help substantiate allegations of continued violations of the property rights of the Armenians of Nagorno-Karabakh under international law. 
  3. Filing individual complaints to the European Court of Human Rights, if possible. For those who are able to do so, filing individual complaints to the European Court of Human Rights is a crucial step towards achieving justice. As long as the situation persists, the Armenians of Nagorno-Karabakh may submit complaints regarding the violation of Article 1 of Protocol No. 1 to the European Convention on Human Rights, and their claims for just compensation. It is necessary to know that natural persons can file a complaint to the European Court through their non-lawyer representatives as well, but only your lawyer will have the right to represent your case and interests from the stage of the complaint acceptance.
  4. Documenting and preserving videos, pictures and other evidence of the destruction, damage or any similar actions of property belonging to the Armenians of Nagorno-Karabakh, disseminated by Azerbaijani information platforms through various social platforms.

Thus, the protection of the property rights of the Armenians of Nagorno-Karabakh is a complex and ongoing process that requires systematic preservation of evidence confirming property rights, participation in legal processes through individual complaints or by supporting an interstate application, and preservation of all documents and evidence of continued violations. The European Court will ultimately issue a judgment on what happened, but the active involvement of the displaced Armenians of Nagorno-Karabakh in this process is crucial to obtaining fair compensation and restoring their legitimate property rights.

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