Azerbaijan violated the Convention by releasing an extradited officer who had murdered an Armenian soldier during training in Hungary, ECHR ruled.
The case Makuchyan and Minasyan v. Azerbaijan and Hungary concerned the presidential pardon given to a convicted murderer and his release following his transfer from Hungary to Azerbaijan to serve the rest of his sentence. R.S., a military officer from Azerbaijan, killed an Armenian military officer and attempted to kill another one when they were attending a course in Hungary in 2004. The case also concerned more generally the hero’s welcome given to R.S. in Azerbaijan upon his return.
In today’s Chamber judgment in the case the European Court of Human Rights held:
• by six votes to one, that there had been no substantive violation by Azerbaijan of Article 2 (right to life) of the European Convention on Human Rights;
• unanimously, that there had been a procedural violation by Azerbaijan of Article 2 of the Convention;
• by six votes to one, that there had been no procedural violation by Hungary of Article 2;
• by six votes to one, that there had been a violation by Azerbaijan of Article 14 (prohibition of discrimination) taken in conjunction with Article 2, and
• unanimously, that neither the Azerbaijani nor Hungarian Governments had failed to comply with Article 38 (obligation to furnish necessary facilities for the examination of the case).
The Court found that although Azerbaijan had clearly endorsed R.S.’s acts, not only by releasing him but also by promoting him, paying him salary arrears and granting him a flat upon his return, it could not be held responsible under the stringent standards of international law which required a State to “acknowledge” such acts “as its own”. Moreover, those acts had been part of a private decision and had been so flagrantly abusive and far removed from the official status of a military officer that the Court could not see how his commanding officers could have foreseen them or how Azerbaijan could be responsible for them just because he was a State agent.
However, it found that there had been no justification for the Azerbaijani authorities’ failure to enforce the punishment of R.S. and to in effect grant him impunity for a serious hate crime.
Moreover, the applicants had provided sufficient evidence to show that R.S.’s pardon and other measures in his favour had been ethnically motivated, namely statements by high-ranking officials expressing their support for his conduct, and in particular the fact that it had been directed against Armenian soldiers, and a specially dedicated page to R.S. on the President of Azerbaijan’s website.
The Court considered that Azerbaijan had assumed responsibility for the enforcement of R.S.’s prison sentence upon his transfer, and from that point on, it had been called upon to provide an adequate response to a very serious ethnically-biased crime for which one of its citizens had been convicted in another country.
Given the extremely tense political situation between Azerbaijan and Armenia, the authorities should have been all the more cautious. Instead of enforcing R.S.’s sentence, however, he had been set free and treated as an innocent or wrongfully convicted person and bestowed with benefits that had not apparently had any legal basis under domestic law.
Moreover, the Court was not convinced by the reasons submitted by the Azerbaijani Government for R.S.’s immediate release. As concerned the alleged unfairness of the criminal proceedings, the Court found that R.S. had been tried in Hungary before courts at two levels, which had handed down well-reasoned decisions. In any event, if R.S. had considered his trial unfair, he could have, but had not, lodged an application with the European Court against Hungary once the criminal proceedings against him had come to an end.
As to R.S.’s personal history and mental difficulties, they could hardly justify the Azerbaijani authorities’ failure to enforce the punishment of one of their citizens for a serious hate crime. In any case, his mental capacities had been thoroughly assessed during his trial in Hungary by medical experts who found that he had been able to understand the consequences of his actions at the time.
Indeed, the subsequent decision to promote R.S. would clearly suggest that the Azerbaijani authorities had deemed him fit to continue to serve in the military and that he had not therefore suffered from a serious mental condition.
The Court noted that the Hungarian authorities had followed to the letter the procedure set out in the Council of Europe Convention on the Transfer of Sentenced Persons when extraditing R.S. No tangible evidence had been brought before the Court to show that the Hungarian authorities had unequivocally been aware or should have been aware that R.S. would be released by Azerbaijan.
The Court held, unanimously, that Azerbaijan was to pay the applicants, jointly, 15,143.33 pounds sterling (GBP) in respect of costs and expenses.
This Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day.
As reported earlier, Ramil Safarov, a lieutenant in the Azerbaijani military, was extradited on August 31, 2012, from Hungary, where he was serving a life sentence—and with no expression of either regret or remorse—for the premeditated axe murder of Armenian lieutenant Gurgen Margaryan, in his sleep, during a NATO Partnership for Peace program in Budapest back in 2004.
As expected, Ramil Safarov’s return to Baku was welcomed, as was his act of murder, by the officials of president Ilham Aliyev’s government and much of Azerbaijani society, and the Azerbaijani president immediately granted him a pardon.
