Communicated on 12 January 2016

FOURTH SECTION

Application no. 17247/13 Hayk MAKUCHYAN and Samvel MINASYAN against Azerbaijan and Hungary lodged on 25 February 2013

STATEMENT OF FACTS

1. The applicants, Mr Hayk Makuchyan and Mr Samvel Minasyan, are Armenian nationals, who were born in 1975 and 1958 respectively and live in Ejmiatsin and Yerevan. They are represented before the Court by Mr P. Leach, lawyer practising in London, and Ms N. Gasparyan, lawyer practising in Yerevan.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

3. The first applicant is a member of the Armenian military. The second applicant is the uncle of the deceased G.M., who was a lieutenant in the Armenian army.

4. In January 2004 the first applicant and G.M. arrived in Budapest (Hungary) with a view to participating in a three-month English language course organised within the framework of the NATO-sponsored “Partnership for Peace” programme. The course included two participants from each of the former Soviet Socialist Republics, including two officers from the Azerbaijani army. The participants were all accommodated on the campus of the Hungarian University of National Defence.

5. Around 5 a.m. on 19 February 2004, one of the members of the Azerbaijani army, R.S., murdered G.M. while he was asleep by decapitating him with sixteen blows of an axe. R.S. then tried to break down the door of the first applicant ’ s room yelling “Open the door, you Armenian! We will cut the throats of all of you!”. He was ultimately stopped by the police which had meanwhile arrived at the scene.

6. In subsequent criminal proceedings, R.S. admitted that he had murdered G.M. only on account of his Armenian origin and he showed no remorse for the committed crimes. On 13 April 2006 the Budapest City Court found R.S. guilty of premeditated murder of G.M. and preparation for murder of the first applicant. He was sentenced to life imprisonment, with a possibility of conditional release after 30 years.

7. According to the facts as subsequently established by the Hungarian courts, R.S. had purchased an axe in a local store with a view to killing both Armenian participants of the course at the anniversary of the beginning of the conflict between Armenia and Azerbaijan over Nagorno Karabakh (for general background see Chiragov and Others v. Armenia [GC], no. 13216/05 , 16 June 2015 and Sargsyan v. Azerbaijan [GC], no. 40167/06 , 16 June 2015 ).

8. The first-instance judgment was upheld by the Court of Appeal on 22 February 2007 and R.S. was sent to serve his sentence in a Hungarian prison.

9. It would appear that R.S. on several occasions sought to be transferred to Azerbaijan in order to serve his prison sentence there, but his requests were systematically refused by the Hungarian authorities.

10. Following a renewed transfer request, in August 2012 the Hungarian Minister of Justice approved R.S. ’ s transfer to Azerbaijan with a view to serving the remainder of his sentence there. Azerbaijan ’ s Ministry of Justice informed the Hungarian authorities that in case of transfer, the enforcement of R.S. ’ s sentence would be continued in Azerbaijan without any conversion of the sentence. In addition, in Azerbaijan a person serving a life imprisonment sentence may only be released on parole after having served at least 25 years ’ imprisonment.

11. On 31 August 2012 R.S. was transferred to Azerbaijan.

12. A few hours after his arrival in Azerbaijan, R.S. was granted a presidential pardon, set free, promoted to the rank of major during the course of a public ceremony, awarded eight years of salary arrears and offered a flat.

13. On the same day the Hungarian Government issued a statement in response to the transfer and pardon of R.S. recalling the conditions for transfer under the Council of Europe Convention on the Transfer of Sentenced Persons. Furthermore, it recalled that the Azerbaijani Ministry of Justice had provided information that the act for which the sentence had been imposed constituted a criminal offence punishable by life imprisonment with the possibility of being released at the earliest after 25 years. Additionally, assurances had been received that the sentence of R.S. would not be converted but immediately continue to be enforced pursuant to the judgment of the Hungarian courts.

14. In a press release dated 2 September 2012, the Hungarian Government expressed its disapproval of the presidential pardon given to R.S. and of the resulting breach of international law emphasizing that the Hungarian Government had acted in accordance with all international rules.

15. In a report issued by the Hungarian Ombudsman on 7 December 2012, it is observed that the actual transfer of R.S. had been approved (though not enforced) before any assurances had been received from the Azerbaijani authorities. In the Ombudsman ’ s opinion the Hungarian authorities ought to have requested from Azerbaijan assurances that it would not grant R.S. amnesty, at least not without Hungary ’ s knowledge. The failure to do so endangered the rule of law and the requirement of legal certainty. The Ombudsman further stressed that the Hungarian authorities should have been aware of the fact that upon his transfer R.S. would be granted amnesty and that the societies of the two countries assessed his acts in fundamentally different ways.

B. Relevant domestic law

1. Azerbaijan

16. The relevant provision of the Constitution of the Republic of Azerbaijan reads as follows:

Article 109. Powers of the President of the Republic of Azerbaijan

“The President of the Republic of Azerbaijan:

...

22. grants pardon; ...”

2. Hungary

17. Article 166 of the Hungarian Criminal Code (Act No. IV of 1978) as in force at the material time reads as follows:

“(1) A person who kills someone commits a felony punishable by imprisonment between five to fifteen years.

(2) The penalty shall be imprisonment between ten to twenty years, or life imprisonment, if the homicide is committed:

a) with premeditation; ...

c) with other malice aforethought or with other malicious motive;

d) with particular cruelty;

...

(3) Any person who engages in preparations to commit homicide is punishable by imprisonment between one to five years.”

C. Relevant Council of Europe materials

18. The 1983 Council of Europe Convention on the Transfer of Sentenced Persons (ETS No. 112) was ratified by both Azerbaijan and Hungary in 2001 and 1993, respectively. The relevant provisions of that treaty read as follows:

Preamble

“The member States of the Council of Europe and the other States, signatory hereto,

Considering that the aim of the Council of Europe is to achieve a greater unity between its members;

Desirous of further developing international co-operation in the field of criminal law;

Considering that such co-operation should further the ends of justice and the social rehabilitation of sentenced persons;

Considering that these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society; and

Considering that this aim can best be achieved by having them transferred to their own countries, [ ...]”

Article 2 – General principles

“1. The Parties undertake to afford each other the widest measure of co-operation in respect of the transfer of sentenced persons in accordance with the provisions of this Convention.

2. A person sentenced in the territory of a Party may be transferred to the territory of another Party, in accordance with the provisions of this Convention, in order to serve the sentence imposed on him. To that end, he may express his interest to the sentencing State or to the administering State in being transferred under this Convention. [ ...]”

Article 9 – Effect of transfer for administering State

“1. The competent authorities of the administering State shall:

a. continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10, or

b. convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11.

2. The administering State, if requested, shall inform the sentencing State before the transfer of the sentenced person as to which of these procedures it will follow.

3. The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions. [...]”

Article 12 – Pardon, amnesty, commutation

“Each Party may grant pardon, amnesty or commutation of the sentence in accordance with its Constitution or other laws. [...]”

19. The declaration to Article 12 of the Convention on the Transfer of Sentenced Persons contained in the instrument of ratification by the Azerbaijani Government reads as follows:

“In accordance with Article 12 of the Convention, the Republic of Azerbaijan declares that decisions regarding the pardons and amnesties of sentenced persons transferred by the Republic of Azerbaijan should be agreed with the relevant competent authorities of the Republic of Azerbaijan.”

20. Recommendation 1527 (2001) of the Parliamentary Assembly of the Council of Europe on the operation of the Council of Europe Convention on the Transfer of Sentenced Persons – critical analysis and recommendations, insofar as relevant, reads as follows:

“ 1. The Council of Europe Convention on the Transfer of Sentenced Persons (ETS No. 112) provides for the transfer of foreign prisoners to their home countries, both for their own sake and because transfer enhances rehabilitation and reintegration into society, and consequently reduces recidivism. [...]

9. For the reasons set out above, the Assembly recommends that the Committee of Ministers: [...]

b. to state clearly that the convention is not designed to be used for the immediate release of prisoners on return to their own country; [...]”

21. Resolution 2022 (2014) of the Parliamentary Assembly of the Council of Europe on measures to prevent abusive use of the Convention on the Transfer of Sentenced Persons (ETS No. 112), insofar as relevant, reads as follows:

“ 1. The Convention on the Transfer of Sentenced Persons (ETS No. 112) provides for the transfer of foreign prisoners to their home countries. Its purpose is primarily humanitarian, to improve prospects of rehabilitation and reintegration of prison inmates into society.

2. [...]

3. The Assembly notes with concern that the convention was invoked in order to justify the immediate release, upon transfer to Azerbaijan, of [R.S.], an Azerbaijani soldier convicted of murdering an Armenian fellow participant on a “Partnership for Peace” training course in Hungary, sponsored by the North Atlantic Treaty Organization (NATO). Upon his arrival in Azerbaijan, he was welcomed as a national hero and granted an immediate pardon – long before the expiry of the minimum sentence set by the Hungarian court – and a retroactive promotion as well as other rewards.

4. While recognising that States Parties, by virtue of Article 12 of the convention, have a sovereign right to grant pardons and amnesties to persons sentenced to a term of imprisonment, the Assembly recalls that the principle of good faith in international relations, recognised, inter alia, by the Vienna Convention on the Law of Treaties, and the principles of the rule of law require that treaties be interpreted in line with their objects and purposes.

5. The Assembly therefore:

5.1. condemns the use of Article 12 of the convention by Azerbaijan in the case of [R.S.] as a violation of the principles of good faith in international relations and of the rule of law;

5.2. confirms its position, expressed in Recommendation 1527 (2001) on the operation of the Council of Europe Convention on the Transfer of Sentenced Persons – critical analysis and recommendations, that the convention is not designed to be used for the immediate release of prisoners upon return to their home country;

5.3. underscores the importance of applying the convention in good faith and, in interpreting its provisions, adhering to the principles of the rule of law, in particular in transfer cases that might have political or diplomatic implications;

5.4. recommends to States Parties to the convention to make, where appropriate, ad hoc arrangements between a sentencing and an administering State in the form of an addendum to a transfer agreement under the convention, which would spell out mutual expectations and provide for adequate assurances by the administering State.”

COMPLAINTS

1. The applicants complain under the substantive limb of Article 2 of the Convention that Azerbaijan violated the right to life of the first applicant and G.M., since the killing and the preparation of murder committed by R.S., a military officer, were attributable to Azerbaijan.

2. The applicants also complain that Azerbaijan violated its procedural obligation under Article 2 by granting a presidential pardon to R.S. on his return to Azerbaijan which had the effect of preventing the full enforcement of his sentence.

3. The applicants further complain under Article 14 in conjunction with Article 2 of the Convention that the crimes committed by R.S. had been ethnically motivated hate crimes since they were solely based on the Armenian origin of the victims. The Azerbaijani Government acknowledged and endorsed those crimes by granting R.S. presidential pardon and a promotion. The glorification of the murder had allegedly been directly related to the victims ’ national origin.

4. Finally, the applicants complain that Hungary violated its positive obligations under Article 2 of the Convention by granting and executing the transfer request concerning R.S. without obtaining adequate binding assurances to the effect that he would be required to complete his prison sentence in Azerbaijan.

QUESTIONS TO THE PARTIES

A. Question concerning both respondent States:

In the circumstances of the present case, is Article 2 of the Convention applicable to the first applicant ’ s complaints?

B. Questions concerning Azerbaijan:

1. Has there been a violation of Article 2 of the Convention by Azerbaijan in respect of the second applicant and, if applicable, of the first applicant? In particular, have the Azerbaijani authorities fulfilled their procedural obligations under Article 2 to protect life and prevent impunity for life-endangering offences (see Enukidze and Girgvliani v. Georgia , no. 25091/07 , 26 April 2011; Ali and Ayşe Duran v. Turkey , no. 42942/02, § 28, 8 April 2008)?

2. Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of their nationality and/or ethnic origin, contrary to Article 14 of the Convention read in conjunction with Article 2? (cf. Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, ECHR 2005 ‑ VII )

3. What were the reasons for the measures taken by the Azerbaijani authorities in respect of R.S. immediately following his transfer to Azerbaijan? The Government are invited to submit to the Court any domestic decision in this respect.

C. Questions concerning Hungary:

1. Has there been a violation of Hungary ’ s positive obligations under Article 2 of the Convention in respect of the second applicant and, if applicable, of the first applicant? In particular, w ere the Hungarian authorities under a positive obligation to ensure respect for the applicants ’ right to life? Were they aware, or ought they have been aware, of the likelihood of release of R.S. upon his transfer to Azerbaijan?

2. Have the Hungarian authorities received sufficient assurances from the Azerbaijani authorities prior to deciding on the transfer of R.S.? If so, the Hungarian Government are invited to produce any such document to the Court.

3. Have the Hungarian authorities received any requests for R.S. ’ s transfer to Azerbaijan prior to 2012 and, if so, what were the reasons for not granting those requests? The Hungarian Government are invited to produce any pertaining documents to the Court.