CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 décembre 2023

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AZERBAIJAN (Applications nos. 54363/17 and two others)   JUDGMENT This version was rectified on 17 January 2024 under Rule 81 of the Rules of Court.   Art 2 (substantive and procedural) • Life • Effective investigation • Art 1 • Jurisdiction of States • Killing of three Armenian soldiers on Armenian territory by a soldier in the Azerbaijani Armed Forces acting as an agent of the respondent State • Prima facie case established • Respondent State’s failure to provide satisfactory and convincing explanation of the events • Jurisdictional link under the Convention established only regarding two of the soldiers; the perpetrator having exercised physical power and control over their lives in a situation of proximate targeting • Unlawful use of force attributable to the respondent State • Failure to conduct an investigation   Prepared by the Registry. Does not bind the Court.   STRASBOURG 19 December 2023   FINAL   24/06/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Narayan and Others v. Azerbaijan, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Georges Ravarani , President ,   Carlo Ranzoni,   Stéphanie Mourou-Vikström,   Lətif Hüseynov,   María Elósegui,   Erik Wennerström,   Mattias Guyomar , judges , and Victor Soloveytchik, Section Registrar, Having regard to: the applications (nos.   54363/17, 54364/17 and 54365/17) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by ten Armenian nationals (“the applicants”), on 29   June 2017; the decision to give notice to the Azerbaijani Government (“the respondent Government”) of the applications; the observations submitted by the respondent Government and the observations in reply submitted by the applicants; the comments submitted by the Armenian Government, who were granted leave to intervene by the President of the Section; Having deliberated in private on 19 September and 21 November 2023, Delivers the following judgment, which was adopted on the latter date: INTRODUCTION 1.     The case concerns alleged violations of Articles 2, 13 and 14 of the Convention in connection with the killing of the applicants’ relatives by Mr   Çingiz Gurbanov, a soldier in the Azerbaijani Armed Forces, who allegedly crossed the border and initiated the shooting while acting as a State agent of Azerbaijan. THE FACTS 2.     A list of the applicants and the relevant details of their applications is set out in the appendix. They were represented before the Court initially by Mr   Artak   Zeynalyan and subsequently [1] by Mr   Ara   Ghazaryan, a lawyer practising in Yerevan. 3.     The respondent Government were represented by their Agent, Mr   Ç.   Asgarov.         Background to the case 4.     On 29 December 2016 military clashes took place on the border between Azerbaijan and Armenia. Three Armenian soldiers (the applicants’ relatives – see paragraph 8 below) and one Azerbaijani soldier (see paragraph   13 below) were killed in the fighting. Their bodies were found close to the village of Chinari in the Tavush region of Armenia (see also Gurbanov v. Armenia , no. 7432/17). 5 .     On 9 January 2017 the Co-Chairs of the OSCE Minsk Group released the following statement: “Baku and Yerevan continue to accuse each other of a December 29, 2016 attempted incursion on the Armenian-Azerbaijani border resulting in casualties. Armenian Armed Forces are still holding the body of an Azerbaijan serviceman killed in the fighting. Violations of the ceasefire are unacceptable and are contrary to the acknowledged commitments of the Parties, who bear full responsibility, not to use force. The Co ‑ Chairs urge the leaders of Armenia and Azerbaijan to strictly observe the agreements reached during summits in Vienna and St. Petersburg in 2016, including obligations to finalize in the shortest possible time an OSCE investigative mechanism. The Co-Chairs also urge the return, without delay, of human remains, in accord with the agreements of the Astrakhan Summit of 2010, bearing in mind the exclusively humanitarian nature of this issue. We call upon the Parties to cease mutual accusations and undertake all   necessary measures to stabilize the situation on the ground.” 6 .     In a statement of 11 January 2017, Thorbjørn Jagland, Secretary General of the Council of Europe at the time, said: “[W]e are concerned about the humanitarian aspects of the conflict. I am aware that the violations of the ceasefire on 29 December resulted in casualties, and that the Armenian Armed Forces are still holding the body of an Azerbaijani serviceman killed in the fighting. I urge the parties to respect the ceasefire, and I fully support the Co ‑ Chairs of the OSCE Minsk Group’s call for the return, without delay, of human remains – in accordance with the agreements of the Astrakhan Summit of 2010 – bearing in mind the humanitarian nature of this issue.”       The circumstances of the case 7.     The facts of the case are disputed. They may be summarised as follows.    Facts as submitted by the applicants 8 .     The applicants, who are Armenian nationals, are the parents and/or siblings (see appendix) of Edgar Narayan, Erik Abovyan and Shavarsh   Melikyan, who were soldiers in the Armed Forces of the Republic of Armenia and were killed on 29   December 2016 while on duty at the Bitlis military post, close to the village of Chinari in the Tavush region of Armenia. 9 .     A criminal investigation was opened by the Chief Military Investigation Department of the Investigative Committee of Armenia on 29   December 2016. On the same day, the investigator examined the site of the incident and drew up a report. Further evidence was adduced in the investigation, notably witness statements and forensic reports. 10 .     On the basis of that evidence, the Armenian investigative authorities established that on the morning of 29 December 2016 Mr Çingiz Gurbanov, a soldier in the Azerbaijani Armed Forces, had crossed the border into Armenian territory and advanced towards Bitlis. 11 .     At the time of the relevant events there were nine Armenian soldiers posted at Bitlis, including the three relatives of the applicants as mentioned above. Five soldiers were questioned about events leading to the incident. According to their consistent testimony, at around 8.30 a.m. (some minutes after the shift had changed at 8.20 a.m.) Mr Narayan left the Bitlis trench shelter to go to the toilet, some 20 metres away, while Mr Abovyan, the cook at the military post, went to collect water from the tanks located some 40   metres away from the military post. A few shots had been fired during a period of between five and ten minutes, and it was later established that these were what had killed Mr Narayan and Mr Abovyan. The photographs taken on site, which are attached to the site examination records, showed Mr   Narayan where he had been shot while he was using the toilet and Mr   Abovyan lying shot beside the water tanks. Both of them were unarmed and they were not wearing armoured jackets or military boots (in fact, Mr   Abovyan was wearing his slippers). 12 .     Shortly thereafter, the alarm was raised by soldier O.H. Mr Melikyan, who was the head of the military post, accompanied by soldiers G.S. and H.S., had put on their military clothing and left the shelter and were advancing along the right-hand and left-hand sides of the road respectively in the direction of the sound of the shots, with the aim of going to the defence of the soldiers who had already fallen down . Since v isibility was very much reduced because of the fog, Mr Melikyan fired a few (“several” or “one or two”) single shots blindly, without aiming at a specific target, after which an automated shot was launched “from a close distance” (estimated by soldier T.S. to have been fired from a distance of 60-70 metres), hitting Mr Melikyan in the head. He fell onto his right side. The witnesses also stated that a person wearing a non-Armenian military uniform had been seen close to the military post, “on the right-hand side of the road”. After about an hour of sporadic crossfire, during which time Armenian reinforcements arrived, the shots from the other side stopped. 13 .     The dead bodies of the three Armenian soldiers were found on the ground along with the body of Mr Gurbanov, who was wearing an Azerbaijani military uniform. A rifle, spare magazines of ammunition and spent cartridge cases were found next to Mr Gurbanov’s body, which was found about 70 metres away from the military post. The body of Mr Abovyan was found some 40 metres away from Mr Gurbanov’s body in the direction of the military post; the body of Mr Narayan was found some 4 metres from that of Mr Abovyan, on an earth dam some 30 cm towards the toilet; finally, the body of Mr Melikyan was found some 8   metres from the staircase leading to the toilet, on the left-hand side of the road. 14 .     Forensic medical examinations of the bodies of the three Armenian soldiers were initiated on 30 December 2016 and concluded with reports issued on 1, 25 and 3 March 2017. The medical reports stated that the three soldiers had died from gunshot wounds to the thorax and neck (Mr Narayan), to the abdomen, thorax and right leg (Mr Abovyan) and to the head (Mr   Melikyan). According to a report of 3 May 2017 on the forensic examination of the rifle carried by Mr Gurbanov, the fatal shots had been fired from that rifle. 15 .     The body of Mr Gurbanov was also examined, firstly on 29   December 2016. According to the report on the examination of the body, which had been drawn up on that occasion in the presence of M.D.H, a forensic doctor from the nearest Armenian town, and of two attesting witnesses, no signs of torture or ill ‑ treatment were found. On 14 January 2017 the body was re-examined in the presence of M.V., the International Committee of the Red Cross coordinator of issues relating to forensic medicine. The report drafted on that date noted that no signs of torture had been found. M.V. confirmed those findings. 16 .     On the basis of the two above-mentioned forensic examinations (see paragraph   15 above), further biological, chemical and criminological conclusions as to the absence of traces of sexual abuse and of alcohol or drug intoxication on the body of Mr Gurbanov were issued on 9, 18 and 30 January 2017 respectively. Final forensic conclusions, confirming Mr Gurbanov’s death as a result of gunshot injuries, in particular injuries to the left anterior part of his chest and abdomen and his upper left shoulder, were issued on 22   February 2017. 17 .     On 4 May 2018 the Armenian experts completed a further forensic medical and ballistic report on the four dead soldiers based on the type of bullets and the positions of the entry and exit wounds, aiming to ascertain whether their injuries corresponded to the traces on their clothes. The conclusions of the report confirmed what had been established in the previous forensic reports, namely that the soldiers’ injuries were gunshot wounds of which the nature, position and trajectories corresponded largely to the traces on the soldiers’ clothes and/or helmets. 18 .     According to the applicants, Azerbaijan has acknowledged that its soldier Mr Gurbanov killed the Armenian soldiers. Nonetheless, the Azerbaijani authorities have not carried out any concrete investigation of the circumstances of the killings, nor have they ever conducted an examination of the site of the incident. Moreover, on 7 February 2017 the Azerbaijani State praised the acts in question, by among other things posthumously giving Mr   Gurbanov the title of “National Hero of Azerbaijan” and naming a street after him.    Facts as submitted by the respondent Government 19 .     On 29 December 2016 the Azerbaijani Ministry of Defence issued a press statement in which it held that during that morning, “the Armenian Armed Forces’ reconnaissance team had run into an ambush during violations of the Azerbaijani-Armenian State border”. As a result of the battle, the Azerbaijani soldier Mr Gurbanov had been declared missing and a search was being carried out for him. 20 .     The respondent Government submitted that on the same day an examination of the “scene” (not specified further) had been conducted and a magazine belonging to the missing soldier with twenty-seven bullets inside had been found. No report or other document confirming any such examination has been submitted to the Court. 21 .     On 18 January 2017 the Military Prosecutor’s Office of Azerbaijan launched a criminal investigation into the murder of Mr Gurbanov by the Armenian Armed Forces. 22 .     According to an affidavit sworn on 18 January 2017 by the commander of the Azerbaijani military unit which had been “conditionally named” Findiq, access, whether by transport or on foot, to the Findiq site and any examination of the site was prohibited indefinitely for security reasons, because it was situated on the enemy front line. 23 .     It was therefore impossible to examine the site. The respondent Government submitted that forensic medical and ballistic examinations had been carried out, and ten witnesses had been heard (see also paragraph   26 below). The witnesses stated in almost identical terms that there was a minefield in the neutral zone between the two military posts, which were located on either side of the border; at the time of the incident, namely early in the morning, there had been fog and drizzle and therefore visibility had been somewhat limited; it was possible that, while attacking their post, the “enemy sabotage group” had used the sappers to clear the mines, and Mr   Gurbanov had identified the “enemy sabotage group” and opened fire on them, “heroically fighting to repel the assault”, but had been captured, possibly when he was reloading his gun. There were no traces of blood inside the trench he had fired from, which most probably meant that the “sabotage group had taken him alive and murdered him at their post, and then put out information alleging that we attacked them”. Also, the witnesses stated that there had been no dead bodies in the area as far as they could see and that “most probably the enemy’s sabotage group [had] managed to take the bodies away with them”. 24 .     The investigation concluded that on the morning of 29 December 2016 at around 7 a.m., Mr Gurbanov, a senior rifleman of the military unit stationed in Tovuz (in the Azerbaijani District), had been on duty at the observation point of the battle station when a reconnaissance and sabotage group of the Armenian Armed Forces crossed the border, broke the ceasefire and attacked the observation point. He had opened fire and after an exchange of gunfire lasting fifteen to twenty minutes, he and his gun had been captured by the Armenian soldiers on Armenian territory, where he was killed at around 8.40 a.m. 25 .     On 13 April 2017 the investigation was suspended because it had not been possible to establish the identity of the person(s) responsible for the murder. 26 .     In support of the above version of the facts, the respondent Government submitted evidence from the relevant criminal investigation file: copies of ten witness statements, typed up by the Azerbaijani investigator and then confirmed by the witnesses with their signature; a copy of the affidavit about the impossibility of carrying out an on-site examination (see paragraph   22 above); and copies of the decisions concerning the initiation and the suspension of the investigation respectively (see paragraphs 21 and 25   above). 27 .     Concerning the posthumous award granted to Mr Gurbanov, the respondent Government submitted that it had not been given for killing the Armenian soldiers but that it had aimed to reward Mr Gurbanov for having defeated the attack on an Azerbaijani military post and prevented the incursion of an Armenian sabotage group into Azerbaijani territory. On making the award, the President of the Republic of Azerbaijan, I. Aliyev, had described how Mr   Gurbanov had “fought to the last breath, killed several invaders and became a martyr” [2] . THE LAW 28.     The applicants complained under Article 2 of the Convention about the deaths of Mr Narayan, Mr Abovyan and Mr Melikyan. They argued that the three soldiers had been unlawfully killed, since there had been no armed conflict at the time and the soldiers had not posed any threat to anyone. Their deaths therefore had not resulted from the use of force which was “absolutely necessary”. The applicants submitted that there had also been a violation of the procedural obligations under Article 2 since Azerbaijan had failed to conduct an investigation into the killings carried out by Mr Gurbanov. Under Article 14 of the Convention in conjunction with Article 2, they further complained that the killings constituted a hate crime and that both the killings and the lack of an investigation were the result of ethnic hatred towards the Armenian victims, allegedly a policy widely advocated by Azerbaijan. Lastly, the applicants maintained that, in breach of Article 13 of the Convention, there was no remedy available in Azerbaijan in respect of the alleged violations which could be accessible to and effective for Armenians.         JOINDER OF THE APPLICATIONS 29.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their   joinder (Rule 42 § 1 of the Rules of Court).       OBSERVANCE OF ARTICLE 38 OF THE CONVENTION 30.     The Court observes that at the time of giving notice of the present applications to the respondent Government on 15 March 2018, it explicitly requested that they provide all the relevant information and documents relating to the case, together with English translations of all national documents. 31.     The respondent Government provided copies of several witness statements and an affidavit confirming the impossibility of an on-site examination at the Azerbaijani military post close to the border, as well as of the decisions firstly to initiate and then, less than three months later, to suspend the criminal investigation into the death of Mr Gurbanov (see paragraph 26 above). No further documents were provided – in particular, copies of the forensic or ballistic reports allegedly produced in the course of the investigation (see paragraph 23 above), or of the site examination records (see paragraph 20 above) – and nor were any explanations given as to the lack of such documents. 32.     The applicants complained about the failure of the respondent Government to provide the full investigation file as outlined above, including the failure to provide any record of the examination of the machine-gun magazine and ammunition used by Mr Gurbanov (see paragraph 20 above). They also indicated that some paragraphs of the English translations of the witness statements were missing from the original text in Azerbaijani, which raised questions as to the authenticity of the documents. 33.     All of the above pointed to a failure by the respondent Government to observe the requirements of Article 38 of the Convention, which reads as follows: “The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities.” 34 .     The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 of the Convention that States should furnish all necessary facilities to make possible a proper and effective examination of applications. This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications. A failure on the part of a Government to submit any such information that is in their hands without a satisfactory explanation may not only give rise to the drawing of inferences as to the well ‑ foundedness of the applicants’ allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 of the Convention (see Makuchyan and Minasyan v. Azerbaijan and Hungary , no. 17247/13, § 224, 26 May 2020). 35.     Turning to the present case, the Court observes that the applicants’ complaint under Article 38 of the Convention relates to the alleged failure of the respondent Government to provide certain documents pertaining to the criminal investigation carried out by the Azerbaijani authorities, as well as to their alleged failure to explain certain discrepancies between what was claimed to constitute the original version of the witness statements and their English translation. 36.     Concerning the authenticity of the documents submitted by the respondent Government, the Court, as master of its own procedure and its own rules, has complete freedom in assessing not only the admissibility and relevance but also the probative value of each item of evidence before it. It therefore considers that, in so far as the respondent Government have sought to rely on the documentation they have provided, which reveals discrepancies between the Azerbaijani version and the English one, the Court will draw appropriate inferences from their failure to explain such discrepancies. The Court’s reliance on evidence obtained as a result of a domestic investigation and on facts established within domestic proceedings will depend on the quality of the domestic investigative process, and the thoroughness and consistency of the proceedings in question (see, mutatis mutandis , Carter v.   Russia , no. 20914/07, §§ 94 and 97-98, 21   September 2021). 37.     Furthermore, bearing in mind the difficulties arising from the establishment of the facts in the present case and in cases similar to it, and in view of the importance of a respondent State’s cooperation in Convention proceedings, the Court emphasises that the failure of the Azerbaijani authorities to submit further documents – assuming such documents actually existed – which could have assisted it in carrying out a proper and effective examination of the present application would entitle it to draw inferences as to the well ‑ foundedness of the applicants’ allegations (contrast Bekirski v.   Bulgaria , no. 71420/01, § 116, 2   September 2010). 38.     In this connection, the Court nevertheless notes that, in spite of the respondent Government’s allusions to the disputed documents (the site examination record and forensic and ballistic reports – see paragraphs 20 and   23 above), the respondent State’s authorities have not relied on any concrete factual information supposedly contained in those documents, either in the criminal proceedings conducted at the domestic level or in the proceedings conducted before the Court. 39.     The Court therefore considers that, on the face of it, there is no indication, other than the allusions made by the respondent Government (see paragraphs 20 and 23 above), that any further evidence, beyond the documents submitted to the Court, was indeed adduced in the Azerbaijani criminal investigation. There therefore appears to have been no failure on the part of the respondent State to produce the required documents (see, mutatis mutandis , Khashiyev and Akayeva v. Russia , nos. 57942/00 and 57945/00, §   139, 24 February 2005); moreover, the Court considers that the gravamen of the applicants’ complaint relates rather to the lack of thoroughness and ultimately the lack of effectiveness of the criminal investigation conducted by the Azerbaijani authorities, matters which will be examined in relation to the applicants’ complaint concerning the failure of the respondent State to comply with its procedural obligations under Article 2 of the Convention (see paragraphs 124- 126 below). 40.     In conclusion, it cannot be said that the respondent Government failed to cooperate with the Court and thus to observe the requirements of Article   38 of the Convention in the present case.     JURISDICTION    The parties’ submissions      The respondent Government 41 .     The respondent Government argued that the applicants’ relatives had not been under the authority or effective control, and hence within the jurisdiction, of the respondent State as a result of any extraterritorial act of the latter. 42 .     Firstly, the applicants had not submitted any evidence supporting their version of the facts according to which there had been an Azerbaijani military presence on Armenian territory, where their relatives had been undergoing military service. It could therefore be presumed that the bodies of the four soldiers, one Azerbaijani and three Armenian, had been taken from Azerbaijan and brought onto Armenian territory for the purposes of “staging a show”. 43 .     Also, even if the bullets found in the bodies of the Armenian soldiers had been fired from the submachine gun belonging to Mr Gurbanov, there was no evidence that he had been the person who had fired them; it was possible that an Armenian soldier had taken the gun from Mr Gurbanov after his death and then shot the other Armenian soldiers with it. That scenario was plausible given that the armed incident as a whole appeared to work in the interests of the Armenian side, who wanted to push the OSCE Minsk Group for a deal within the peace negotiations which were under way at the time. 44.     In any event, the criminal investigation initiated by the Azerbaijani authorities had not revealed any evidence to support the idea that Azerbaijan had authorised or given orders to either Mr Gurbanov or any other Azerbaijani soldier to cross the border and attack Armenian military positions. 45.     In view of all the above, the respondent Government argued that the facts of the present case did not fall under Azerbaijan’s jurisdiction.      The applicants 46 .     The applicants submitted that in the absence of any ongoing armed conflict at the relevant time, Mr Gurbanov, a soldier in the Azerbaijani Armed Forces, had crossed the Armenian border and, acting as a State agent of Azerbaijan, had fired at the applicants’ relatives, who were Armenian soldiers. This had been witnessed by Armenian soldiers from the Bitlis military post who had testified that they had seen a person nearby wearing a military uniform that was not Armenian. The Azerbaijani soldier had shot at the three Armenian soldiers from a close distance, bringing them within his physical control. Two of the three soldiers had been unarmed at the time of the incident and had been killed at a moment when they were not on active military service, while the third had been killed at his post while he was engaged in defending himself. The dead body of Mr Gurbanov, just like the bodies of the three Armenian soldiers, had been found on Armenian territory. 47.     The scenarios proposed by the respondent Government to explain the factual background of the case, blaming the Armenian military for having staged the death scene and having killed their own soldiers (see paragraphs   41 and 43 above), lacked any plausibility and were highly offensive. Moreover, the Azerbaijani criminal investigation had not included any examination of the site of the incident, leaving such scenarios unsupported by any evidence. 48.     In the same vein, the applicants challenged the authenticity and reliability of the ten witness statements submitted by the respondent Government, as they appeared to be largely identical word for word, even having the same grammatical structure and sentence sequences, with the same details and expressions used to describe what the witnesses had allegedly seen, all of this showing that the statements had in fact been copied and pasted from one to another. Also, some paragraphs of the English translations of the statements were missing from the original text in Azerbaijani. Such doubtful evidence could not be used by the Court in its examination of the case. 49.     Conversely, the Armenian criminal investigation had established on the basis of a substantial body of evidence (see paragraphs 10-17 above) that the Armenian soldiers had been shot dead on Armenian territory with a submachine gun that had belonged to the Azerbaijani soldier, the position of the bodies and the forensic evidence being sufficient to show where the shooting and subsequent deaths had occurred. 50.     The applicants therefore maintained that the alleged violations came under the extraterritorial jurisdiction of Azerbaijan under Article 1.      The Armenian Government, third-party intervener 51.     The Armenian Government fully shared the applicants’ position on the matter. They emphasised that the use of force by State agents operating outside the territory of the State concerned could bring an individual under the control of that State’s authorities and therefore within that State’s jurisdiction within the meaning of Article 1 of the Convention (they cited Al ‑ Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 136, ECHR 2011). 52 .     In that connection, they stated that the suppositions made by the respondent State as to the unfolding of the events of the morning of 29   December 2016 were absurd and unsupported by any evidence. There had been no signs of struggle on Mr Gurbanov’s body, as there would be in a case where a person was kidnapped and inevitably put up some resistance; no traces of the alleged border incursion by the Armenian military group had been detected; and the Armenian soldiers had been shot at very close range, making it more plausible that the crossfire had happened on Armenian territory, where all four bodies had been found. 53.     Consequently, the Armenian Government argued that the burden of proving that the facts of the present case did not in fact fall under Azerbaijan’s jurisdiction lay with the respondent Government. 54 .     However, the investigation conducted by the Azerbaijani authorities had lacked effectiveness and the evidence produced to that investigation was unreliable, if not fake, as, for instance, the statements taken from the witnesses appeared to be, given that they included many paragraphs which were identical word for word. Such evidence was insufficient to reverse the findings of the Armenian investigation, which had concluded that the killing of the Armenian soldiers had been perpetrated by the soldier Mr Gurbanov, acting as an Azerbaijani State agent. That was also demonstrated by the fact that Mr Gurbanov had been posthumously awarded the title of “National Hero of Azerbaijan”, showing that his actions had been sponsored and encouraged by the Azerbaijani authorities, such that their responsibility was engaged for the purposes of Article 1 of the Convention.    The Court’s assessment 55.     Article 1 of the Convention reads as follows: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” 56.     The Court would begin by noting that the relevant events did not take place in occupied territory but concerned an incursion over the border between the States of Armenia and Azerbaijan and the subsequent killing of the applicants’ relatives, allegedly perpetrated by an Azerbaijani State agent, the soldier Mr Gurbanov. The facts of the case raise the issue of the extraterritorial jurisdiction of Azerbaijan. 57 .     The exercise of jurisdiction is a necessary condition for a Contracting State to be held responsible for acts or omissions imputed to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention. While a State’s jurisdictional competence under Article 1 is primarily territorial, the Court in its case-law has recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries. In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extraterritorially must be determined with reference to the particular facts (see Carter , cited above, § 124). 58 .     The two main criteria governing the exercise of extraterritorial jurisdiction are that of “effective control” by the State over an area outside its territory (the spatial concept of jurisdiction) and that of “State agent authority and control” over individuals (the personal concept of jurisdiction) (see Al ‑ Skeini and Others , cited above, §§ 133-40, and Georgia v. Russia (II) [GC], no. 38263/08, § 115, 21 January 2021). In the present case, it is the second of these criteria that is relevant. 59 .     Moreover, as regards the procedural obligation to investigate a death which has occurred outside a State’s jurisdiction, the Court has recently summarised the relevant principles in Makuchyan and Minasyan (cited above, § 48, citing Güzelyurtlu and Others v. Cyprus and Turkey [GC] no.   36925/07, §§ 178-90, 29 January 2019), in which it stated, in particular: “[W]here no investigation or proceedings have been instituted in a Contracting State, according to its domestic law, in respect of a death which has occurred outside its jurisdiction, the Court will have to determine whether a jurisdictional link can, in any event, be established for the procedural obligation imposed by Article 2 to come into effect in respect of that State. Although the procedural obligation under Article 2 will in principle only be triggered for the Contracting State under whose jurisdiction the deceased was to be found at the time of death, ‘special features’ in a given case will justify departure from this approach, according to the principles developed in Rantsev , §§   243-44. However, the Court does not consider that it has to define in abstracto which ‘special features’ trigger the existence of a jurisdictional link in relation to the procedural obligation to investigate under Article 2, since these features will necessarily depend on the particular circumstances of each case and may vary considerably from one case to the other.” 60 .     On the basis of the above and having regard to the applicants’ complaints against the respondent State as formulated in the present case, the Court considers that the issue of jurisdiction, closely linked to that of attribution of the acts in question to the respondent State, has to be established by examining at the outset the following elements: firstly, whether the fatal shooting was indeed carried out by Mr Gurbanov, as alleged by the applicants; if so, then secondly, whether each of the three victims was under his authority and control at the relevant time (the personal concept of jurisdiction); and lastly, whether he was acting as an Azerbaijani State agent at the time of that shooting. Should those elements be established, the Court could properly proceed to consider that if it has jurisdiction regarding the substantive limb of Article 2, that entails jurisdiction regarding the procedural limb (see Güzelyurtlu and Others , cited above, § 188, and Georgia v.   Russia   (II) , cited above, §§ 328-30). 61 .     Those issues are interlinked with the substance of the applicants’ allegations and will be examined simultaneously with the related complaints (see, mutatis mutandis , Razvozzhayev v. Russia and Ukraine and Udaltsov v.   Russia , nos. 75734/12 and 2 others, § 161, 19 November 2019, and Makuchyan and Minasyan , cited above, § 52). 62 .     In so far as the complaints raised by the applicants under Articles 13 and 14 of the Convention are closely linked to the above, the corresponding conclusion on the issue of jurisdiction will be affected by the Court’s findings in that respect under Article 2 of the Convention.    Six months 63 .     The respondent Government argued that, given that the applicants considered that there was no effective remedy in respect of the killing of their relatives, they should have lodged their application to the Court within six months of the time of the deaths, which had taken place on 29 December 2016. However, the applications had been received by the Court on 11 July 2017 and therefore outside the six-month time-limit. 64.     The applicants indicated that they had sent their applications by post in time, namely on 29 June 2017. 65.     Having examined the material submitted by the applicants, the Court notes that the envelopes containing their respective application forms bear the postmark of a post office in Yerevan, Armenia, with the date of 29 June 2017. According to its long-standing case-law on the matter (see, among many other authorities, Vasiliauskas v. Lithuania [GC], no. 35343/05, § 117, ECHR 2015), the Court considers the postmark to be the date on which the applications were lodged, notwithstanding that the Registry of the Court may have received them at a later date (see paragraph 63 above). The applications were therefore lodged within the time-limit provided for in Article 35 § 1 of the Convention; accordingly, the respondent Government’s objection must be dismissed.      Exhaustion of domestic remedies    The parties’ submissions      The respondent Government 66 .     The respondent Government argued that the applicants had not addressed their complaints relating to the deaths of their relatives to the Azerbaijani authorities, which could have initiated criminal investigations into the matter in accordance with the provisions of their national Code of Criminal Procedure, which provided, among other things, for the right of the victims of a criminal act to actively participate and be involved in the investigation. 67.     The Azerbaijani criminal investigation had also established that members of the Armenian military had attacked the Azerbaijani military post close to the State border; any evidence to the contrary should have been filed in the Azerbaijani criminal proceedings by the applicants, and their failure to do so had meant that the national authorities had no opportunity to put matters right through their own legal system. 68.     Lastly, the respondent Government denied the existence of any practice preventing Armenian citizens from contacting, whether by telephone or via the Internet, the relevant national authorities involved in criminal investigation proceedings; indeed, the applicants had not substantiated their allegations in that respect (see paragraph 70 below) by any evidence.      The applicants 69 .     The applicants stated that there was no available effective remedy for them in Azerbaijan. They referred to the conclusions drawn by the Court in Sargsyan v. Azerbaijan ([GC], no. 40167/06, §§ 117 and 119, ECHR 2015). 70 .     Furthermore, owing to the unresolved conflict concerning Nagorno-Karabakh, there were obstacles of a diplomatic and practical nature (there were no postal services; Armenian citizens had no access to the relevant Internet pages of the Bar Association or of the criminal investigation authorities; and it was not possible to make phone calls from Armenia to Azerbaijan) to attempts by Armenians to gain access to or to participate in any potential remedies in Azerbaijan.      The Armenian Government, third-party intervener 7