issued by the Registrar of the Court

ECHR 140 (2020)

26.05.2020

Azerbaijan violated the Convention by releasing an extradited officer who had

murdered an Armenian soldier during training in Hungary

The case Makuchyan and Minasyan v. Azerbaijan and Hungary (application no. 17247/13)

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 judgment¹in 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.

1. Under Articles 43 and 44 of the Convention, 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.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

Principal facts

The applicants are two Armenian nationals, Hayk Makuchyan and Samvel Minasyan, who is now

deceased, who were born in 1975 and 1958 respectively. Mr Minasyan’s widow and their two

children are pursuing the case in his stead.

In 2004, Mr Makuchyan and Mr Minasyan’s nephew, G.M., both members of the Armenian military,

attended an English-language course in Budapest organised by the NATO-sponsored “Partnership for

Peace” programme. The course included two participants from each of the former Soviet states,

including Azerbaijan.

During the course, R.S., a member of the Azerbaijani military, murdered Mr Minasyan’s nephew

while he was asleep by decapitating him with an axe. R.S. also tried to break into Mr Makuchyan’s

room before being arrested by the Hungarian police.

R.S. was convicted of exceptionally cruel and premeditated murder and preparation of murder and

sentenced to life imprisonment by the Hungarian courts, with a possibility of conditional release

after 30 years.

During the criminal proceedings R.S. showed no remorse, admitting that he had murdered

Mr Minasyan’s nephew on account of his Armenian origin and because the Armenian participants in

the course had provoked and mocked him.

In 2012, following a request by the Azerbaijani authorities, R.S. was transferred to Azerbaijan, in

accordance with the Council of Europe Convention on the Transfer of Sentenced Persons, to serve

the rest of his sentence.

However, upon his arrival in Azerbaijan, R.S. was informed that he had received a presidential

pardon and was released. He was also promoted to the rank of major at a public ceremony, granted

a flat and paid eight years of salary arrears.

Complaints, procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 25 February 2013.

The applicants alleged that Azerbaijan had been responsible for substantive and procedural

violations of Article 2 (right to life) of the European Convention on Human Rights because the attack

had been carried out by an Azerbaijani military officer and because he had been granted a pardon

which prevented the full enforcement of his sentence. They complained that Hungary had also

violated Article 2 of the Convention by granting and executing the request for the officer’s transfer

without obtaining adequate binding assurances that he would complete his prison sentence in

Azerbaijan.

They further alleged under Article 14 (prohibition of discrimination) in conjunction with Article 2 that

the attack had been an ethnically motivated hate crime which the Azerbaijani Government had

acknowledged and endorsed by granting the officer a presidential pardon and a promotion.

Lastly, the applicants complained that both Governments had failed to disclose documents

requested by them in the proceedings before the Strasbourg Court, in breach of Article 38

(obligation to furnish necessary facilities for examination of the case).

Third-party comments were received from the Armenian Government, which had exercised its right

to intervene in the case (under Article 36 § 1 of the Convention and Rule 44 § 1 (b) of the Rules of

Court).

Judgment was given by a Chamber of seven judges, composed as follows:

Ganna Yudkivska (Ukraine), President,

Vincent A. De Gaetano (Malta),

Paulo Pinto de Albuquerque (Portugal),

Robert Spano (Iceland) ad hoc judge,

Faris Vehabović (Bosnia and Herzegovina),

Egidijus Kūris (Lithuania),

Lәtif Hüseynov (Azerbaijan),

and also Marialena Tsirli, Deputy Registrar.

Decision of the Court

Whether Azerbaijan was responsible for the murder of G.M. and attempted murder of

Mr Makuchyan under the substantive aspect of Article 2

The Court noted that the current standard under international law²set a very high threshold for

State responsibility for an act otherwise non-attributable to a State at the time it had been

committed. In particular, to find a State responsible under international law it had to have

“acknowledged” and “adopted”, not just “approved” and “endorsed” the act.

The Azerbaijani Government actions as a whole, including the decision to pardon R.S., promote him,

award him salary arrears and grant him the use of a flat, had clearly and unequivocally

demonstrated their “approval” and “endorsement” of his conduct.

Such endorsement was mirrored in statements submitted by the applicants that had been given by

various Azerbaijani officials and other persons expressing personal approval of R.S.’s conduct, his

transfer and/or pardon. The Court agreed that many of the statements in question, as well as a

special section on the official webpage of the President of Azerbaijan with letters thanking the

President for R.S.’s pardon, were particularly disturbing in that they glorified R.S. as a national hero

for the gruesome crimes that he had committed.

However, the Court was not convinced that Azerbaijan had “clearly and unequivocally”

“acknowledged” and “adopted” “as its own” R.S.’s deplorable acts, which had been part of a private

decision. Furthermore, the attack had taken place at night, outside of training hours, and there was

no suggestion that he had committed the crimes on orders given by his superiors.

The Court was not convinced either that such flagrantly abusive private acts, so far removed from

R.S.’s official status as a military officer, could have been foreseen by his commanding officers or

that the Azerbaijani State could be held responsible for them under international law just because

he had been an agent of the State.

Nor was there anything in the case file to suggest that the procedure in Azerbaijan for the

recruitment of members of the armed forces and the monitoring of their fitness to serve at the time

that R.S. was sent on his mission to Hungary had been inadequate.

Stressing that its assessment was based on the very stringent standards set out by international law,

the Court held that there had been no substantive violation of Article 2 by Azerbaijan.

Whether Azerbaijan had complied with its duty under the procedural aspect of Article 2 to

ensure enforcement of R.S.’s punishment

Article 11 of the United Nations’ Draft Articles on the Responsibility of States of Internationally Wrongful Acts.

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.

R.S. had in effect been granted impunity in Azerbaijan for the crimes committed against his

Armenian victims. That was not compatible with Azerbaijan’s obligation under Article 2 to

effectively deter the commission of offences which put others’ lives at risk. The Court therefore held

that there had been a procedural violation of Article 2 by Azerbaijan.

Whether Hungary had failed in its duty under Article 2 to ensure that R.S. would continue to

serve his prison sentence even after he had left the country

First, 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.

Indeed, given the time already served by R.S. in a Hungarian prison, the Court did not see how the

authorities of that country could have done anything more than respect the procedure and the spirit

of the Transfer Convention and trust that another Council of Europe State would act in good faith.

There had therefore been no procedural violation of Article 2 by Hungary.

Whether the Armenian ethnic origin of R.S.’s victims had played a role in the measures

taken by the Azerbaijani authorities following his return

The Court noted that the Hungarian courts had found that the sole motive for R.S.’s acts had been

the fact that his victims were Armenian. The ethnic bias of his crimes had thus been fully

investigated by Hungary and the Court could see no reason to question the courts’ conclusions.

Furthermore, it was satisfied that the applicants had a sufficiently convincing prima facie case to

show that the Azerbaijani measures in favour of R.S. had been racially motivated. In particular, he

had been pardoned on his return, without any apparent formal request or any kind of reflection

process or legal procedure. He had also been promoted and given various benefits, which, in the

absence of any legal basis, had quite understandably been perceived as rewards for his conduct.

Moreover, it noted again the statements by Azerbaijani officials calling R.S. a patriot and a hero, as

well as the special page dedicated to R.S. on the President of Azerbaijan’s website. It deplored the

fact that the majority of those statements had expressed particular support for the fact that R.S.’s

crimes had been directed against Armenian soldiers and considered that the very existence of the

website suggested that he had been pardoned because of the ethnic nature of his attack.

Two statements provided by the Azerbaijani Government, on the other hand, denying that R.S.’s

actions had been approved at an official level and that he had not been considered a hero in the

country, were not sufficient to refute the overwhelming body of evidence from the applicants that

the various measures leading to R.S.’s virtual impunity, coupled with the glorification of his

extremely cruel hate crime, had had a causal link to the victims’ Armenian ethnicity.

The Government had failed to disprove the applicants’ arguable allegation of discrimination and

there had been a violation of Article 14 in conjunction with Article 2 by Azerbaijan.

Whether the Azerbaijani and Hungarian Governments had failed to disclose documents

The applicants complained that both Governments had failed to disclose documents requested by

them, referring in particular to Azerbaijan’s presidential order pardoning R.S. and the minutes of the

meetings held by the president and the instructions issued by him relating to R.S.

The Court found to the contrary that, at its request, both the Azerbaijani and Hungarian

Governments had submitted the documents requested by the Court within the time-limit, including

the presidential pardon decision. It was not aware of any further document which the Governments

could have provided for a proper and effective examination of the applicants’ case, but had failed to

do so.

In conclusion, neither of the respondent Governments had failed to cooperate with the Court and

there had been no violation of Article 38.

Just satisfaction (Article 41)

The Court held, unanimously, that Azerbaijan was to pay the applicants, jointly, 15,143.33 pounds

sterling (GBP) in respect of costs and expenses.

Separate opinion

Judge Pinto de Albuquerque expressed a partly dissenting opinion which is annexed to the

judgment.

The judgment is available only in English.

This press release is a document produced by the Registry. It does not bind the Court. Decisions,

judgments and further information about the Court can be found on www.echr.coe.int. To receive

the Court’s press releases, please subscribe here: www.echr.coe.int/RSS/en or follow us on Twitter

@ECHR_CEDH.

Press contacts

Journalists can contact the Press Unit via echrpress@echr.coe.int

Tracey Turner-Tretz

Denis Lambert

Inci Ertekin

Patrick Lannin