ECHR decision of may 26, 2020 in the case "Makuchyan and Minasyan v. Azerbaijan and Hungary" (aplication N 17247/13).
In 2013, the applicants were assisted in preparing the aplication. The aplication was subsequently communicated to Azerbaijan and Hungary.
The case successfully considered an aplication about the authorities ' unjustified failure to comply with a sentence of imprisonment for a crime motivated by national hatred imposed abroad against a soldier who, upon returning to the country, was pardoned, promoted and received financial incentives. The case violated the requirements of article 2 (in its procedural and legal aspect) and article 14 of the Convention for the protection of human rights and fundamental freedoms. There were no violations of article 2 of the Convention for the protection of human rights and fundamental freedoms in its substantive aspect.
While participating in the military operations of the NATO forces in Budapest, an Azerbaijani soldier (R. S.) beheaded an Armenian soldier (a relative of the second applicant) and threatened to kill another Armenian soldier (the first applicant) by trying to break down the door of his room with an axe. In Hungary, R. S. was sentenced to life imprisonment. The factor of national hatred in his crimes was fully investigated and considered in the courts of Hungary. After serving eight years of an appointed term of punishment R. S. he was sent to Azerbaijan in accordance with the Council of Europe Convention on the transfer of convicted persons (hereinafter referred to as the Convention on the transfer of convicted persons) to serve the remainder of his sentence in his home state. However, upon his return, R. S. was immediately released from custody, pardoned, promoted in a public ceremony, paid his salary for the entire period spent in prison, and given an apartment in Baku. Many high-ranking officials of Azerbaijan have made approving statements regarding the actions of R. S. and his pardon.
POINT OF LAW
Regarding compliance with article 1 of the Convention (territorial jurisdiction in relation to the Azerbaijani authorities). The execution of a sentence imposed in the context of the protection of the right to life should be considered an integral part of the state's procedural obligation under article 2 of the Convention. Regardless of where the crime was committed, since the Azerbaijani authorities agreed to accept and assumed the obligation under the Convention on the transfer of convicted persons to continue the execution of the sentence against R. S., they were obliged to do so in accordance with their procedural obligation under article 2 of the Convention.
Regarding compliance with article 2 of the Convention. (a) Applicability to the first applicant. Although the first applicant had not suffered actual bodily injury, the courts of Hungary condemned the R. S. for the "attempted murder". The first applicant's life was therefore in serious and imminent danger. Consequently, article 2 of the Convention was applicable to the first applicant's situation.
(b) the Substantive obligations of the Azerbaijani authorities under article 2 of the Convention. The court attached particular importance to the fact that R. S., although a member of the Azerbaijani Armed forces at the time in question, did not act in his professional capacity or on the orders of the command at the time of the incident. On the contrary, the crimes were committed by him as a result of his personal, private decision to kill, since the Armenian victims allegedly laughed at him and provoked him.
Existing standards of international law arising from article 11 of the Draft articles of the United Nations "on the responsibility of States for internationally wrongful acts" (hereinafter referred to as the Draft articles) establish extremely strict requirements for state responsibility to arise for an act that normally does not fall within the state's sphere of competence at the time of its Commission. In the context of the present case, in order to establish that the Azerbaijani authorities violated article 2 of the Convention in its substantive aspect, it was necessary to demonstrate convincingly that the Azerbaijani authorities not only "approved" and "supported" the disputed actions, but also "clearly and unequivocally" "recognized" and "accepted" these actions "as their own", while "recognition" and "acceptance" were conditions that had to be fulfilled simultaneously.
Considering the actions of the Azerbaijani authorities in General, including the decisions to pardon and promote R. S., to pay him monetary compensation and to provide him with an apartment, it is to be assumed that the Azerbaijani authorities undoubtedly demonstrated "approval" and "recognition" of the criminal actions of R. S. However, after carefully examining the nature and scope of the measures complained of in their General context, the European Court concluded that it was not conclusively proved that the Azerbaijani authorities "clearly and unequivocally" "recognized" and "accepted" the deplorable actions of R. S. "as their own", thus accepting direct and unequivocal responsibility for the murder of one person and the attempted murder of another by R. S.. The European Court of justice stressed that this assessment was carried out on the basis of strict standards in accordance with the current norms of international law.
In essence, the measures complained of could rather be interpreted as aimed at public review, recognition and correction of the unfavorable personal, professional and financial situation of R. S., which the Azerbaijani authorities, in the opinion of the European Court, unreasonably considered to be the result of allegedly unfair criminal proceedings in Hungary.
Finally, in cases where law enforcement officials commit crimes outside their official authority, Council of Europe member States are expected to apply higher professional standards to their law enforcement systems, as well as to ensure that those working in these structures meet the necessary criteria. Similar standards may apply to military personnel. However, taking into account the circumstances of the present case, the Court is not convinced that the R. S. command could have foreseen his actions, which he carried out as a private person, or that the blame for these actions in General should be placed on the Azerbaijani authorities only because the guilty person is in the military service of this state. Indeed, the disputed actions were so clearly criminal and so far removed from R. S. ' status as a military officer that, based on the circumstances of the case, even the most serious criminal offences of R. S. could not entail the international responsibility of the Azerbaijani authorities in terms of material law. Moreover, nothing in the case file suggests that the procedure for recruiting military personnel and monitoring their compliance with professional standards during the service of R. S. in Hungary was improper.
In the case, the Azerbaijani authorities did not violate the requirements of article 2 of the Convention in its substantive aspect (adopted by six votes in favor and one against).
(c) the Procedural obligations of the Azerbaijani authorities under article 2 of the Convention. From the moment when the Azerbaijani authorities assumed responsibility for the execution of the criminal sentence imposed by R. S., i.e. from the date of its transfer, they were obliged to respond appropriately to an extremely serious crime based on national hatred. In view of the extremely tense political situation between the two States, the Azerbaijani authorities should have been particularly careful, given that the victims of the crimes were people of Armenian nationality.
The European Court did not convince any of the arguments of the Azerbaijani authorities in favor of the immediate release of R. S. from custody. First, the case of R. S. in Hungary was considered by the courts of two instances, which issued reasoned decisions. In this respect, R. S. did not file a complaint with the European Court of justice against the Hungarian authorities for a violation of article 6 of the Convention. In any event, there was insufficient evidence that any procedural violation would not have been accompanied by procedural safeguards, or that such violations would have made the entire R. S. proceedings unfair. Secondly, the alleged personal situation and problems that R. S. had with mental health could hardly be considered sufficient to justify the failure of the Azerbaijani authorities to execute a sentence for a serious crime committed abroad. The mental state of R. S. was thoroughly examined during the trial in Hungary. Moreover, R. S.'s promotion to the rank clearly suggested that he did not suffer from a serious mental disorder.
As a result, the Azerbaijani authorities treated R. S. as an innocent or unjustly convicted person and provided him with a number of material benefits (salary payments, apartment provision, promotion) that had no legal basis under the legislation of Azerbaijan. Thus, the actions of the Azerbaijani authorities actually released R. S. from responsibility for the crimes committed against the Armenian victims. This situation did not comply with the obligation of the Azerbaijani authorities under article 2 of the Convention to effectively prevent the Commission of crimes against human life.
In the case, the Azerbaijani authorities violated the requirements of article 2 of the Convention in its procedural and legal aspect (adopted unanimously).
(d) The procedural obligations of the Hungarian authorities under article 2 of the Convention. The European Court of justice should have determined whether the transmitting state could have been responsible (and to what extent) for protecting the rights of victims of crime or their close relatives. The Hungarian authorities fully followed the procedure set out in the Convention on the transfer of convicted persons. In particular, they demanded that the Azerbaijani authorities indicate what procedure will be applied if R. S. returns to his native country. Although the response of the Azerbaijani authorities was clearly incomplete and worded in General terms, which in turn could have raised suspicions about the manner of execution of the sentence imposed on R. S. and prompted the Hungarian authorities to take further action, the European Court was not provided with any convincing evidence that the Hungarian authorities certainly knew or should have known that R. S. would be released from custody after returning to Azerbaijan. However, especially considering the time already spent by R. S. in a Hungarian prison, the court does not see what other actions could be taken by the competent Hungarian authorities other than to comply with the procedure and spirit of the Convention on the transfer of convicted persons, and on the assumption that another member state of the Council of Europe would act in good faith. Consequently, the Hungarian authorities fulfilled their procedural obligations.
In the case, the Hungarian authorities did not violate the requirements of article 2 of the Convention in its procedural and legal aspect (adopted by six votes in favor and one against).
Regarding compliance with article 14 of the Convention in relation to article 2 of the Convention (in relation to the Azerbaijani authorities). The task of the European Court of justice was to determine whether the Armenian origin of the victims of R. S. crimes and the nature of these crimes were relevant for the Azerbaijani authorities to take the measures under consideration after R. S. returned to Azerbaijan. The Azerbaijani authorities did not specify the norms of domestic legislation that would be the legal grounds for receiving R. S. material benefits, which, of course, were perceived as a reward for his actions. Also, the Azerbaijani authorities did not give examples from practice when convicted murderers would be granted similar privileges after receiving a presidential pardon. In addition, it should be noted with regret that some high-ranking officials of Azerbaijan voiced statements in which they proudly called R. S. a patriot and hero, emphasizing the fact that the crimes of R. S. were directed against soldiers of Armenian nationality. On a special web page created for this purpose on the website of the President of Azerbaijan, a huge number of people thanked the President for pardoning R. S., as they justified the murder of Armenian soldiers by him. Although the President of Azerbaijan personally never published messages on this website, the very fact of its existence led to the fact that the pardon was seen as an important step in the process of legitimizing and glorifying the actions of R. S.
Consequently, the applicants submitted sufficiently convincing, clear and consistent conclusions to form a prima facie case that the measures taken by the Azerbaijani authorities against R. S., which led to his de facto impunity, together with the glorification of the exceptionally serious crime of R. S. committed on the basis of hatred, had a causal relationship with the Armenian nationality of the victims of R. S. and, thus, were committed on the basis of national hatred. The Azerbaijani authorities tried to justify their actions by referring to the same reasons that were rejected by the European Court of justice as unconvincing in the context of the applicants ' complaint of a violation of article 2 of the Convention in the procedural and legal aspect (see above). Thus, the Azerbaijani authorities were unable to refute the applicants ' arguable claim of discrimination in the case.
In the case, the Azerbaijani authorities violated the requirements of article 14 of the Convention, considered in conjunction with article 2 of the Convention (adopted by six votes in favor and one against).
The European Court also unanimously recognized that the authorities of both Azerbaijan and Hungary had fulfilled their obligations under article 38 of the Convention.
In the application of article 41 of the Convention. The applicants did not submit any claims for damages. The Azerbaijani authorities were not informed of any individual measures taken in accordance with article 46 of the Convention.