Makuchyan and Minasyan v. Azerbaijan and Hungary

Information Note on the Court’s case-law 240

May 2020

Makuchyan and Minasyan v. Azerbaijan and Hungary - 17247/13

Judgment 26.5.2020 [Section IV]

Article 2

Positive obligations

Article 2-1

Life

Azerbaijan’s “approval and endorsement” of crimes committed by its agent in private capacity, without clear and unequivocal “acknowledgement” and “adoption” of crimes “as its own”: no violation

Azerbaijan’s unjustified failure to enforce prison sentence for ethnic hate crime, imposed abroad on its officer, who was pardoned, promoted and awarded benefits upon return: violation

No failure by Hungary to ensure that Azerbaijani national would continue to serve his prison sentence in home country: no violation

Article 14

Discrimination

Azerbaijan’s failure to enforce prison sentence for hate crime against Armenian victims, imposed abroad on its officer, who was glorified as hero, promoted and awarded benefits upon return: violation

Facts – While taking part in a NATO course in Budapest, an Azerbaijani officer (R.S.) decapitated an Armenian officer (the second applicant’s relative) and threatened to kill another Armenian soldier (the first applicant), trying to break down the door of his room with an axe. R.S. was sentenced to life imprisonment in Hungary. The ethnic bias in respect of his crimes was fully investigated and highlighted by the Hungarian courts. Having served eight years of his sentence in Hungary, R.S. was transferred to Azerbaijan under the Council of Europe Convention on Transfer of Sentenced Persons (“the Transfer Convention”) with a view to serving the remainder of his sentence in his home country. However, upon his return he was immediately released, pardoned, promoted at a public ceremony and awarded arrears in salary for the period spent in prison as well as the use of a flat in Baku. Many comments approving R.S.’s conduct and pardon were made by various high-ranking Azerbaijani officials.

Law

Article 1 (territorial jurisdiction as regards Azerbaijan):

The enforcement of a sentence imposed in the context of the right to life had to be regarded as an integral part of the State’s procedural obligation under Article 2. Regardless of where the crimes had been committed, in so far as Azerbaijan had agreed to and assumed the obligation under the Transfer Convention to continue the enforcement of R.S.’s prison sentence, it had been bound to do so, in compliance with its procedural obligations under Article 2 of the Convention. In sum, there were “special features” that triggered the existence of Azerbaijan’s jurisdictional link in relation to the procedural obligation under Article 2.

Article 2:

(a) Applicability as regards the first applicant

While the first applicant had not sustained any actual bodily harm, the Hungarian courts had sentenced R.S. for the “preparation of his murder”. His life had thus been in serious and imminent danger. Article 2 was therefore applicable.

(b) Substantive obligations under Article 2 of the Convention as regards Azerbaijan

The Court attached crucial importance to the fact that R.S., although a member of the Azerbaijani military forces at the material time, had not been acting in the exercise of his official duties or on orders by his superiors. On the contrary, the crimes had been committed as a result of his private decision to kill because the Armenian victims had allegedly mocked and provoked him.

The current standard under international law, which stemmed from Article 11 of the Draft Articles on the Responsibility of States of Internationally Wrongful Actsof the United Nations (“the Draft Articles”), set a very high threshold for State responsibility for an act otherwise non-attributable to a State at the time of its commission.In the context of the present case, in order to assuredly establish that there had been a violation by the State of Azerbaijan of Article 2 of the Convention under its substantive limb, it had to be convincingly demonstrated that, by their actions, the Azerbaijani authorities had not only “approved” and “endorsed” the impugned acts, but also had “clearly and unequivocally” “acknowledged” and “adopted” those acts “as their own”, “acknowledgement” and “adoption” being cumulative conditions.

Viewing the actions of the Azerbaijani Government as a whole, including the decisions to pardon and to promote R.S. and to award him salary arrears and a flat, Azerbaijan had to be considered, beyond any doubt, to have demonstrated its “approval” and “endorsement” of R.S.’s criminal acts. However, having most thoroughly examined the nature and scope of the impugned measures within their overall context, the Court concluded that it had not been convincingly demonstrated that the State of Azerbaijan had “clearly and unequivocally” “acknowledged” and “adopted” R.S.’s deplorable acts “as its own”, thus directly and categorically assuming, as such, responsibility for his actual killing of one victim and the preparation of the murder of the other. The Court emphasised that that assessment was undertaken on the basis of the very stringent standards under the existing rules of international law.

In substance, the impugned measures could rather be interpreted as having the purpose of publicly addressing, recognising and remedying R.S.’s adverse personal, professional and financial situation, which the authorities of Azerbaijan had perceived, unjustifiably in the Court’s view, as being the consequence of the allegedly flawed criminal proceedings in Hungary.

Lastly, in cases where crimes had been committed by police officers acting outside of their official duties, the member States of the Council of Europe were expected to set high professional standards within their law-enforcement systems and ensure that the persons serving in these systems met the requisite criteria. Similar standards might apply to members of the armed forces. However, having regard to the particular circumstances of the present case, the Court was not convinced that the private acts of R.S. could have been foreseen by his commanding officers or should be held imputable to the Azerbaijani State as a whole, just because that individual happened to be its agent. Indeed, the impugned acts had been so flagrantly abusive and so far removed from R.S.’s official status as a military officer that, on the facts of the case, his most serious criminal behaviour could not engage the State’s substantive international responsibility. Moreover, nothing in the case-file suggested that the procedure in Azerbaijan for the recruitment of members of the armed forces and the monitoring of their compliance with professional standards at the time that R.S. had been sent on his mission, including their continued mental fitness to serve, had been inadequate.

Conclusion: no violation (six votes to one).

From the point at which Azerbaijan had assumed responsibility for the enforcement of R.S.’s prison sentence – i.e. the moment of his transfer – it had been called upon to provide an adequate response to a very serious ethnically-biased crime. In view of the extremely tense political situation between the two countries, the authorities should have been all the more cautious, given that the victims of the crimes in the present case had been of Armenian origin.

The Court was not convinced by any of the Azerbaijani Government’s arguments for R.S.’s immediate release. First of all, R.S. had been afforded a criminal trial in Hungary before courts at two judicial instances, which had delivered well-reasoned decisions. In that respect, he had not lodged an application under Article 6 against Hungary with the Court. In any event, there was insufficient evidence that any procedural omission had not been subsequently offset by procedural safeguards or that such an omission had rendered the entire proceedings against him unfair. Secondly, the alleged personal history and mental difficulties of R.S. could hardly be sufficient to justify the Azerbaijani authorities’ failure to enforce the punishment for a serious hate crime committed abroad. R.S.’s mental capacities had been thoroughly assessed during his trial in Hungary. Moreover, his promotion to a higher military rank would clearly suggest that he had not suffered from a serious mental condition.

In sum, R.S. had been treated as an innocent or wrongfully convicted person and bestowed with a number of benefits (salary arrears, a flat, a promotion) that were devoid of any legal basis under domestic law. In view of the foregoing, the acts of Azerbaijan in effect had granted R.S. impunity for the crimes committed against his Armenian victims. This had not been compatible with Azerbaijan’s obligation under Article 2 to effectively deter the commission of offences against the lives of individuals.

Conclusion: violation (unanimously).

(d) Procedural obligations under Article 2 of the Convention as regards Hungary

The Court was called upon to examine whether and to what extent a transferring State might be responsible for the protection of the rights of victims of a crime or their next-of-kin. The Hungarian authorities had followed the procedure set out in the Transfer Convention in its entirety. In particular, they had requested that the Azerbaijani authorities specify which procedure would be followed in the event of R.S.’s return to his home country. Although the reply of the Azerbaijani’s authorities had been admittedly incomplete and worded in general terms, which in turn could have aroused suspicion as to the manner of the execution of R.S.’s prison sentence and prompted them to further action, no tangible evidence had been adduced before the Court to show that the Hungarian authorities had unequivocally been or should have been aware that R.S. would be released upon his return to Azerbaijan. Indeed, bearing in mind particularly the time already served by R.S. in a Hungarian prison, the Court did not see how the competent Hungarian bodies could have done anything more than respect the procedure and the spirit of the Transfer Convention andproceed on the assumption that another Council of Europe member State would act in good faith. Accordingly, the Hungarian authorities had not failed to fulfil their procedural obligations.

Conclusion: no violation (six votes to one).

Article 14 in conjunction with Article 2 (Azerbaijan):

The applicants had therefore put forward sufficiently strong, clear and concordant inferences as to make a convincing prima facie case that the measures taken by the Azerbaijani authorities in respect of R.S., leading to his virtual impunity and coupled with the glorification of his extremely cruel hate crime, had had a causal link to the Armenian ethnicity of his victims and had thus been racially motivated. The Azerbaijani Government had sought to justify their actions by relying on the same reasons that were dismissed by the Court as unconvincing in the context of the applicants’ complaint under the procedural limb of Article 2 (above). The Government had thus failed to disprove the applicants’ arguable allegation of discrimination.

Conclusion: violation (six votes to one).

The Court also found, unanimously, that there had been no failure of Azerbaijan nor of Hungary to comply with Article 38.

Article 41: no claim made.

Article 46: no indication of general or individual measures in respect of Azerbaijan