Communicated on 9 February 2017
FIRST SECTION
Application no 7432/17
Salman GURBANOV
against Armenia
lodged on 24 January 2017
STATEMENT OF FACTS
On 29 December 2016 military clashes took place on the border between Azerbaijan and Armenia. The applicant’s son, Çingiz Gurbanov, born in 1994, a soldier in the Azerbaijani Armed Forces, went missing close to Chinari village of the Tavush region of Armenia. It was later found out that the son had been killed and that his body was held on Armenian territory.
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.”
In a statement of 11 January 2017 Thorbjørn Jagland, Secretary-General of the Council of Europe, expressed:
“[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.”
According to the applicant, Azerbaijani authorities have appealed to the International Committee of the Red Cross (ICRC). The OSCE Minsk Group, the ICRC and Azerbaijan’s State Commission on Prisoners of War, Hostages and Missing People are making efforts aimed at the repatriation of the body of the applicant’s son. Allegedly, Armenia is delaying the process, stating that there is an ongoing investigation into the matter.
It appears that the body of Çingiz Gurbanov has not yet been repatriated.
COMPLAINTS
1. The applicant claims that the refusal to return his son’s body amounts to inhuman treatment under Article 3 of the Convention in relation to himself and his family members. The failure to return the body has caused the relatives profound anguish and distress, which is exacerbated by the uncertainty as to whether it will be returned at all. The applicant states that the Armenian Armed Forces have acted deliberately with the intent to humiliate and to inspire fear and suffering in the relatives and the Azerbaijani public. He further expresses the strong belief that his son’s body has not been returned in order to hide acts of mutilation and abuse.
2. The applicant further argues that the non-return involves a violation of Article 8 of the Convention, as he and his family members are prevented from burying the body in accordance with their religious tradition.
3. Moreover, there is no judicial review or other effective remedy for challenging the failure to return the applicant’s son’s body, in breach of Article 13 of the Convention.
4. Finally, the applicant complains that the above breaches of the Convention have come about by means of discriminatory treatment based on ethnicity and national origin, in violation of Article 14 of the Convention.
QUESTIONs
1. The Government are requested to explain the authorities’ official position in connection with the repatriation of the body of the applicant’s son and to provide information on the reasons for the delay in returning the body to the relatives.
2. Furthermore, the Government are requested to provide all relevant information and documents concerning the case.
3. Further and in any event, the parties are requested to address the following questions:
(a) Do the facts of which the applicant complains in the present case fall under the jurisdiction of Armenia?
(b) Does the applicant have at his disposal an effective domestic remedy for his Convention complaints, within the meaning of Article 13 of the Convention? If so, has he exhausted this remedy, as required by Article 35 § 1 (see further Chiragov and Others v. Armenia [GC], no. 13216/05, §§ 115-120, ECHR 2015)?
(c) Has there been a violation of Article 3 of the Convention in regard to the mental anguish allegedly caused to the applicant and his family members by the circumstances related to the son’s death and the non-return of his body (see, for instance, Akpınar and Altun v. Turkey, no. 56760/00, §§ 84-87, 27 February 2007)?
(d) Has there been a violation of Article 8 of the Convention in regard to the applicant’s difficulties in recovering his son’s body and burying the body according to the family’s religious tradition (see, for instance, Maskhadova and Others v. Russia, no. 18071/05, § 208, 6 June 2013)?
(e) Has the applicant suffered discrimination in the enjoyment of his Convention rights due to ethnicity or nationality or on any other ground contrary to Article 14 of the Convention?
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