18 August 2020 by

Makuchyan and Minasyan -v- Azerbaijan and Hungary (Application No. 17247/13)

This latest judgment from the European Court docket of Human Rights arises from the 2012 switch from Hungary to Azerbaijan of prisoner Ramil Safarov, a member of the Azerbaijani military, following his conviction in Hungary for the homicide of an Armenian officer in 2004. Specifically, the Court docket thought-about Article 2 ECHR (the fitting to life) within the context of (a) when a state will be held accountable for the actions of a person carried out in a personal capability, and (b) the obligations on a state who transfers a prisoner to see out their sentence of their residence state.

An Armenian protester holds footage of Ramil Safarov, left, and Gurgen Margaryan throughout an indication exterior the Hungarian embassy in Nicosia, Cyprus, in 2012. {Photograph}: Petros Karadjias/AP (Supply: The Guardian)

RS’s crimes, switch and launch

In February 2004, Azerbaijani military officer Ramil Safarov (RS) murdered Gurgen Margaryan (GM), certainly one of two Armenian contributors in a NATO-sponsored English language programme in Hungary, by decapitating him with an axe whereas he lay asleep. RS then tried to interrupt down the door of the opposite Armenian participant, Hayk Makuchyan (HM), allegedly yelling, “Open the door, you Armenian! We are going to minimize the throats of all of you!”, earlier than he was stopped by the Hungarian police.

RS was tried and sentenced in Hungary to life imprisonment, with a risk of conditional launch after 30 years. Through the prison investigation in Hungary, RS gave proof that he strongly disliked Armenians as a result of he had misplaced family members within the Nagorno-Karabakh conflict between the 2 international locations, and that on a number of events throughout the programme GM and HM had provoked him and mocked each him and the Azerbaijani flag.

In July 2012, eight years into RS’s sentence, Azerbaijan lodged a request underneath the 1983 Council of Europe Conference on the Switch of Sentenced Individuals (the “Switch Conference”) for RS to be transferred to his residence nation. Hungary agreed. Nevertheless, as quickly as RS arrived in Azerbaijan, he was granted a presidential pardon, let loose, awarded a army promotion, and supplied with an house and eight years of wage arrears. Numerous high-ranking authorities officers made statements in help of RS, together with:

This occasion is a motive for happiness and delight for every of us. To see our soldier right here, the devoted son of his nation, taken to jail solely as a result of he rose to guard the glory and honour of his homeland and other people, could be very spectacular…

Novruz Mammadov, head of the Azerbaijani presidential administration’s International Relations Division (2012)

On the web site of the President of Azerbaijan, a particular web page was arrange labelled “Letters of Appreciation concerning [RS]”, the place members of the general public might specific their congratulations on RS’s launch and pardon.

Article 2 ECHR

Article 2(1) ECHR, “Everybody’s proper to life shall be protected by regulation […]”, creates each a substantive obligation on a state to not use deadly pressure by its brokers, in addition to a procedural obligation to enact and uphold legal guidelines which defend the fitting to life.

Azerbaijan: no substantive violation of Article 2

The Court docket held that, on the time of his crimes, RS was not appearing within the train of his official duties as a member of the Azerbaijani army, however in his non-public capability. To find out whether or not RS’s actions could possibly be attributed to Azerbaijan for the aim of Article 2, the Court docket adopted the take a look at set out in Article 11 of the 2001 UN International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts (the “ILC Draft Articles”). This reads: 

Conduct which isn’t attributable to a State underneath the previous articles shall however be thought-about an act of that State underneath worldwide regulation if and to the extent that the State acknowledges and adopts the conduct in query as its personal.”

The ILC’s commentary to Article 11 additional reads: 

The phrase “acknowledges and adopts the conduct in query as its personal” is meant to differentiate circumstances of acknowledgment and adoption from circumstances of mere help or endorsement.

Though not binding, the ILC Draft Articles have been utilized as customary worldwide regulation. The Court docket famous that the brink set out within the ILC Draft Articles is a excessive one. It in contrast RS’s case to the case within the Worldwide Court docket of Justice (ICJ) of United States Diplomatic and Consular Staff in Tehran, wherein the ICJ discovered the seizure of the US embassy by Irani militants in 1979 to be attributable to Iran. In that case, Iran had issued a decree expressly approving and sustaining the hostage state of affairs. In RS’s case, having reviewed the statements and actions of the Azerbaijani state in relation to RS’s crimes, the Court docket discovered that Azerbaijan had not gone as far as to undertake RS’s actions as its personal and so had not breached its substantive obligations underneath Article 2 ECHR.

Azerbaijan: procedural violation of Article 2

The Court docket discovered that from the second of RS’s switch, Azerbaijan assumed accountability for the enforcement of his jail sentence. From that point, Azerbaijan’s procedural obligations underneath Article 2 required it to offer an satisfactory response to such a severe crime. As a substitute, Azerbaijan’s response was to successfully deal with RS as an harmless or wrongfully convicted individual and grant him impunity for his crimes. The Court docket was not satisfied by the arguments of the Azerbaijani authorities that (a) it had “humanitarian considerations for the historical past, plight and psychological situation of RS”, or (b) the prison proceedings in Hungary had been unfair. The Court docket discovered Azerbaijan to have breached its procedural obligations underneath Article 2.

Hungary: no procedural violation of Article 2

In distinction, the Court docket discovered that Hungary had not breached its procedural obligations underneath Article 2. It had adopted the process set out within the Switch Conference, together with asking Azerbaijan to specify which of the 2 attainable procedures it could undertake: (a) to proceed the enforcement of RS’s present sentence, or (b) to transform RS’s sentence into a call of the Azerbaijani state and to substitute Azerbaijan’s personal sanction. Azerbaijan’s response to Hungary’s request was obscure and incomplete. Its letter solely said on the whole phrases that, within the occasion of the switch of a prisoner convicted overseas, the enforcement of the sentence could be continued in Azerbaijan with none “conversion” of the sentence. Nevertheless, the Court docket held that the proof introduced didn’t present that the Hungarian authorities unequivocally have been, or ought to have been, conscious that RS could be launched upon his return to Azerbaijan.

Commentary

As is likely to be anticipated in a judgment of such political and authorized significance, there are a variety of controversial features to the Court docket’s determination.

One challenge is the Court docket’s software of the ILC Draft Articles and its strict interpretation of the requirement that the state should present “acknowledgment and adoption of the act because the state’s personal” to be able to carry accountability for a person’s non-public acts. In different phrases, the Court docket emphasised the necessity for some form of formal determination by the state’s authorities, displaying an specific intention to undertake the related conduct as its personal. As this blog post factors out, nonetheless, the 2 key circumstances quoted within the commentary to the ILC Draft Articles (the so-called “Lighthouses arbitration”, Affaire relative à la concession des phares de l’Empire Ottoman, UNRIAA, vol. XII, Gross sales No. 63.V.3 (1956), and the aforementioned ICJ United States Diplomatic and Consular Employees in Iran) don’t make this commonplace clear, and in reality solely phrase their choices by way of “approval” and “endorsement”. In his partially dissenting opinion to the Court docket’s judgment, Choose Pinto de Albuquerque suggests {that a} formal determination by state authorities might not be obligatory to be able to undertake the related conduct: as an alternative he argues that Azerbaijan’s acknowledgment and adoption of RS’s acts will be inferred from its conduct.

One other challenge is the Court docket’s discovering that Hungary was not in breach of Article 2. Commentators have argued that this successfully provides approval to a relatively low commonplace of due diligence on the a part of states when responding to requests underneath the Switch Conference. In his partially dissenting opinion, Choose Pinto de Albuquerque held that Hungary did in actual fact have enough information of the chance and probability that Azerbaijan would launch RS following his switch, and may have requested particular assurances as to the continuation of his sentence in Azerbaijan. He emphasised a remark made by the Prime Minister of Hungary shortly after the discharge of RS, that:

Nothing occurred after our determination that we’d not have reckoned with prematurely.

If the case is appealed to the Grand Chamber, these factors are prone to be the topic of additional dialogue.