PARTLY DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE

1. I follow the opinion of the majority with two major reservations. My first reservation is with regard to the finding in the judgment that there has been no violation by Azerbaijan of Article 2 of the European Convention on Human rights (“the Convention”) under its substantive limb. My second reservation is with regard to the majority’s finding that there has been no procedural violation by Hungary under Article 2 of the Convention.

2. Two distinct issues form the basis of my argument that Azerbaijan has breached the substantive limb of Article 2 of the Convention. Firstly, Azerbaijan has met the requirements under Article 11 of the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“the ILC Draft Articles on State Responsibility”) by acknowledging and adopting the conduct of R.S. as its own, according to the factual circumstances evidenced in the file. Secondly, Azerbaijan has wrongfully granted a pardon, when it should have refrained from doing so in the light of international law. In other words, the present case calls for due regard to the teachings of international public law and particularly to the authoritative interpretations of the Council of Europe Parliamentary Assembly (PACE) and the European Parliament.

3. Regarding Article 11 of the ILC Draft Articles on State Responsibility, it should first be mentioned that it reflects customary international law [2] . Under that Article a State may be held responsible for acts that were committed by a private person if it has acknowledged and adopted the person’s conduct as its own [3] . The Tribunal in the Iran-United States Claims case stipulated that “in order to attribute an act to the State, it [was] necessary to identify with reasonable certainty the actors and their association with the State” [emphasis added] [4] .

4. Azerbaijan’s treatment of R.S. was aimed at nullifying the negative aspects of his previous conviction. Based on the established facts, R.S. was offered restorative measures to such an extent that Azerbaijan treated R.S. as a wrongfully prosecuted convict. One of the most indicative acts undertaken by Azerbaijan which demonstrates their treatment of his conduct as lawful was the repayment of his salary for the time he had spent in the Hungarian prison. In total, eight years’ worth of salary was paid retrospectively. Even the majority express their opinion that “the foregoing – taken as a whole – indicates that R.S. was treated as an innocent or wrongfully convicted person and bestowed with benefits that appear not to have a legal basis under domestic law” [5] . Such action undertaken on the part of Azerbaijan clearly goes beyond statements of approval or endorsement. The repayment of salary arrears represents a positive action undertaken by the State of Azerbaijan in an effort to compensate R.S. for the time he was serving his appropriate and lawful sentence in Hungary.

5. Other than the salary arrears, R.S. became the beneficiary of further restorative measures through which Azerbaijan effectively sought to nullify his previous conviction. R.S. was welcomed back to the military, and indeed received a promotion to a higher military rank.

6. In addition to Azerbaijan’s actions indicating their intention to present R.S.’s conduct as lawful, it can also be seen that Azerbaijan has utilised the acknowledged and adopted conduct to further its own political goals [6] . Azerbaijan clearly took political advantage of R.S.’s acts and declared him a national hero, which is an indication by the Azerbaijani government as to the type of behaviour it seeks to reward.

Azerbaijan thus proceeded to praise R.S. as a national hero, a role model and a patriot who had defended his country’s honour. Even if Azerbaijan insisted that it did not directly commend the heinous crime committed by R.S., it is evident from the actions undertaken by Azerbaijan that it has indeed tolerated, and even glorified, his acts. The formal basis for this can be seen through the reinstatement of R.S. to his military office, and indeed his promotion. R.S. therefore has the ability to carry out acts of the State, which, in the light of R.S.’s previous commission of a heinous crime, can only be rationalised by assuming that Azerbaijan views that crime as a laudable, rewardable, legal act, and one which was not flagrantly abusive or far removed from R.S.’s official status as a military officer. Were this not the case, Azerbaijan would have to condemn R.S.’s conduct and, according to its own national law, continue to enforce the punishment that R.S. had received in Hungary.

7. Azerbaijan further utilised the actions of R.S. by encouraging members of the public to congratulate and express their support for him through a special page on the website of the President of Azerbaijan, labelled “Letters of Appreciation regarding R.S.”. Consequently, a high number of letters displayed support for R.S.’s actions and thanked the President for pardoning him. As the majority themselves admit, “[w]hile it is true that the President himself had never posted anything in that section, its mere existence and the reason therefor pointed to the idea that R.S. had been pardoned because his attack had been of an ethnic nature and that the granting of the pardon could be perceived as an important step in the process of legitimising and glorifying R.S.’s actions” [7] .

8. The majority also opine that the “overwhelming body of evidence submitted by the applicants indicat[ed] that the various measures leading to R.S.’s virtual impunity, coupled with the glorification of his extremely cruel hate crime, had a causal link to the Armenian ethnicity of his victims” [8] . These statements demonstrate a remarkable disconnect in the majority’s finding of a procedural violation of Article 2, whilst not accepting the evident substantive violation of Article 2. On the one hand the majority accept that Azerbaijan treated R.S. as an innocent or wrongfully convicted person [9] and even legitimised and glorified his actions [10] , but on the other hand they refuse to declare this finding as triggering Article 11 of the ILC Draft Articles on State Responsibility. This is beyond my comprehension.

9. Indeed, the commentary on the ILC Draft Articles on State Responsibility distinguishes two ways in which a State’s acknowledgement and adoption of a particular conduct as its own may be identified. Either, as in the United States Diplomatic and Consular Staff in Tehran case, it might be through express conduct, or, alternatively “it might be inferred from the conduct of the State in question” [11] . In a case before the International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Dragan Nikolic (“Sušica Camp”), the Trial Chamber relied on the principles laid down in the ILC Draft Articles on State Responsibility “as general legal guidance insofar as they may be helpful for determining the issue at hand” [12] . The Tribunal had to weigh up whether SFOR and the Prosecution were to be viewed as “a mere passive beneficiary of [the defendant’s] fortuitous (even irregular) rendition to Bosnia” as opposed to the “‘adoption’ or ‘acknowledgment’ of the illegal conduct ‘as their own’” [13] . This distinction of being a “mere beneficiary”, as opposed to an active “acknowledgement” and “adoption” of an individual’s act, further clarifies the threshold which needs to be surpassed for responsibility to be engaged under Article 11 of the ILC Draft Articles on State Responsibility. In Prosecutor v. Dragan Nikolic , the Trial Chamber concluded that SFOR and the Prosecution had indeed acted in accordance with their international obligations to arrest and detain the person and had been a “mere beneficiary” of illegal conduct [14] .

10. In contrast to this, the Azerbaijani authorities were not “mere beneficiaries” of the fortuitous rendition of RS but instead sought this rendition by all political and legal means and even promoted the rendered person to the rank of national hero. In the present case, Azerbaijan does not expressly claim to have acknowledged and adopted the acts of R.S. as its own, but it is clear from the facts that it behaved in a manner from which such acknowledgement and adoption can be inferred. But there is more to be added in terms of the respondent State’s international liability.

11. Under international law, it has long been admitted that the approval by the State of contentious private conduct may be inferred from the pardoning of the offender “when such pardon necessarily deprives the injured party of all redress” [15] . It is true that the issuance of a pardon for serious crimes, including murder, is not prohibited under international law. The use of pardons, however, may be limited in the light of other international obligations that a State may have to observe. Two relevant obligations for the present case are the obligation to prosecute and the obligation to implement a sentence.

12. In paragraph 61 of the present judgment, the majority find as follows:

“... under Azerbaijani law a presidential pardon is not a normative legal act, but rather a decision based on the discretionary power of the Head of State. Other than claiming that the applicants could have attempted to have their case reviewed by the Constitutional Court, the Government did not submit a single example of a domestic decision in which such a course of action had been successful. The Court therefore rejects the Government’s objection in this respect.”

The majority also attentively note that no formal request for a pardon was ever made, nor was any kind of reflection process or legal procedure initiated for the delivery of the pardon [16] .

13. The explanation by Azerbaijan that there was an avenue through which the applicants could have had their case reviewed has therefore not convinced the majority. The majority further review the reasons for R.S.’s immediate release and find that neither the alleged unfairness of the criminal proceedings in Hungary, nor the personal history and mental difficulties of R.S. “could hardly be sufficient to justify the failure of the Azerbaijani authorities to enforce the punishment pronounced against one of their citizens for a serious hate crime committed abroad” [17] . In straightforward language, the majority even state that “the acts of Azerbaijan in effect granted R.S. impunity for the crimes committed against his Armenian victims” [18] .

14. These arguments should, in my view, indicate that Azerbaijan has used the presidential power of pardon in an unlawful way. This view is further backed up by the authoritative interpretation of PACE, which issued a resolution on the Transfer Convention prior to the commission of R.S.’s acts and his ensuing transfer to Azerbaijan. The interpretation of the Transfer Convention by PACE should have been taken into account when the Azerbaijani President signed the pardon immediately following the transfer of R.S, but it was not. On the contrary, it was bluntly ignored by the Azerbaijani Head of State and his acolytes. The revocation of the punishment that was lawfully imposed on R.S. for his commission of a grave crime effectively deprived the applicants of any means of redress, to use the language of the above-mentioned Cotesworth and Powell case [19] .

15. In fact, PACE had reiterated in its Recommendation 1527(2001), that “[f]or the reasons set out above, the Assembly recommends that the Committee of Ministers: ... state clearly that the convention is not designed to be used for the immediate release of prisoners on return to their own country” (paragraph 9.3(b)), a fact which the majority acknowledge in their finding as well [20] . Furthermore, the majority also mention PACE Resolution 2022 (2014), which concluded: “...the presidential pardon was seemingly granted as a reward for [the victim’s] murder, motivated by nationalist hate. It did not imply forgiveness, but the glorification of a crime on political grounds” [21] .

The PACE Recommendation of 2001 was further substantiated by a Resolution of the Parliamentary Assembly of 2014, in which it concluded that, by granting R.S. a pardon, Azerbaijan had violated the principle of good faith and the rule of law [22] . It is notable that the Parliamentary Assembly does not shy away from condemning a pardon, which, according to general international law, can be issued at the discretion of each individual State. In addition, it has sought to limit the legitimate use of pardons whenever specific international obligations – such as the principle of good faith and the upholding of the rule of law, which are fundamental features of the Council of Europe’s values – may be infringed.

Likewise, the European Parliament took the standpoint that Azerbaijan had acted in bad faith when issuing a pardon to R.S. It specified that whilst granting a pardon in general was lawful, in the present case “it [ran counter] to the spirit of that international agreement” [23] . The majority similarly refer to the Parliament’s Resolution when highlighting that the Azerbaijani authorities should have been cautious in providing an adequate response upon receiving R.S. in the light of the very serious ethnically based crimes he had committed [24] . Despite these findings, the majority refrain from condemning the pardon as a violation under international law.

16. Again, therefore, there appears to be a noticeable disconnect between the majority’s observations and findings of a procedural violation, whilst simultaneously finding no violation of Article 2 of the Convention under its substantive limb. The majority clearly point out their dissatisfaction with Azerbaijan’s behaviour in the light of its international obligation to enforce the sentence handed down by the Hungarian court, but they fail to take the final step of condemning it.

17. Taken together with the aim of the Transfer Convention to promote justice and social rehabilitation of sentenced persons, as acknowledged by the majority themselves [25] , it is inconceivable to me how Azerbaijan cannot be condemned for non-compliance with its international obligations to enforce a valid, final sentence in the present case.

18. The cumulative effect of the PACE Recommendation in 2001, alongside its condemnation of the specific conduct of Azerbaijan in both the 2012 and the 2014 Resolutions, and the acknowledgement by the majority of these authoritative interpretations, lead me to conclude that Azerbaijan should be held responsible for issuing an unlawful pardon in the light of international law.

19. Lastly, I would like to return to the jurisprudence of the European Court of Human Rights (“the Court”). Many times, the Court has maintained its position that “the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective” [26] . Moreover, it has repeatedly stated that “in determining Convention rights one must frequently look beyond appearances and concentrate on the realities of the situation” [27] .

The current presentation of hard facts, demonstrating how Azerbaijan has actively taken steps to pardon and annul any punishment, compensate R.S. and indeed elevate his position to the pinnacle of a national hero, forms a “reality of the situation” which to my mind cannot but be seen as a State’s endorsement through acknowledgement and adoption of the individual’s conduct as its own. This must clearly be condemned under international law. It must therefore be concluded that the State definitively assumed and adopted the criminal conduct of R.S. as its own from the point where it nullified the effects of the sentence imposed on him. Although used in a different setting, the words of the Umpire in the Poggioli case can be recalled here: the Azerbaijan State authorities were “so blind to their duties” that they failed to comply with their international obligations and thus their acts were not “the acts of a well-ordered state, but rather that for the time being some of the instrumentalities of government had failed to exercise properly their functions” [28] . The seriousness of the present case results from the fact that the failing “instrumentalities of the government” in Azerbaijan were at the highest level of the State.

20. With regard to the majority’s finding of no violation of Hungary’s procedural obligation under Article 2 of the Convention, I would like to submit three reasons that have led me to reach the opposite conclusion.

Firstly, Hungary was aware of the likelihood that R.S. would be granted a pardon. Prime Minister Viktor Orbán was questioned about R.S. in a press conference shortly after R.S.’s release and stated as follows:

“There was coordination within the entire government about this ... Each ministry presented its opinion, the justice ministry about the legal side and the foreign ministry about the diplomatic consequences. ... The foreign ministry had forecast precisely what types of consequences this or the other decision may have. Nothing happened after our decision that we would not have reckoned with in advance.” [29]

This is a notorious fact which should not have been ignored by the majority, in view of the Court’s case-law and also having regard to international jurisprudence in which judges used widely known and publicly available facts for the purpose of obtaining a realistic view of the facts beyond the case file [30] . Here again, it is of the utmost importance that the Court should not turn a blind eye to reality, because President Orban’s statements are truly remarkable. Not only did he indicate his involvement in the process of the transfer of R.S., which normally involves the Ministry of Justice as the competent authority to transfer sentenced persons, he also blatantly expressed his view that Hungary was indeed not surprised at the outcome of R.S.’s transfer. This, in consequence, demonstrates that Hungary was willing to face the risks that would arise once R.S. was transferred back to Azerbaijan.

21. Secondly, even admitting for the sake of argument that Hungary was genuinely unaware of the course of events that would follow a prison transfer of R.S. to Azerbaijan, it should have been aware of the content of the Transfer Convention, which expressly stipulates the possibility of a pardon under Article 12. The mere legal possibility of a pardon for a transfer candidate such as R.S. should have triggered a duty on the part of Hungary to be extremely cautious about accepting the request from Azerbaijan regarding the transfer. This view was also expressed by the Hungarian Commissioner for Fundamental Rights who, in response to R.S.’s transfer, issued a report in which he stated:

“In my opinion, the Hungarian Government was not sufficiently prudent when it did not require any guarantee from Azerbaijan for not granting – or not without knowledge of Hungary – the amnesty provided by article 12 of the Convention. ... In the absence of such prudence the Hungarian public may consider the decision on the approval of transfer as one made in bad faith.” [31]

In coming to this conclusion, the Commissioner also took into account that the actual transfer of R.S. had been approved prior to any assurances by Azerbaijan [32] . The Hungarian Commissioner’s conclusion also reflects the view of the Council of Europe Parliamentary Assembly. The latter proceeded to “recommend 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” [33] .

22. Thirdly, Hungary should have been more cautious when receiving informal assurances from Azerbaijan, particularly when dealing with such a sensitive, politically-laden case as the present one. The informal assurances issued by the Deputy Minister of Justice of the Republic of Azerbaijan merely stated that R.S. would be handled under Article 9(1)(a) of the Transfer Convention, which would imply non-conversion of sentence. The formulation is the following: “in the event of the transfer of a prisoner convicted abroad, the enforcement of the sentence would be continued in Azerbaijan without any ‘conversion’ of the sentence” [34] . He then proceeded to state that the punishment of a convict serving a life sentence could only be replaced with a term of imprisonment for a specified period, and that the convict could be released on conditional parole only after serving at least 25 years of his or her prison sentence [35] . It is crucial to observe the detail of this statement. The Azerbaijani Deputy Minister of Justice did not specify that R.S. would be subject to the punishment of a convict serving a life sentence, which would only allow parole after 25 years; he merely pointed out the existence of the legislative framework and did not apply it to R.S.’s case.

23. The majority take note of this fact too and decide that there existed insufficient tangible facts to determine that Hungary did know or ought to have known about R.S.’s immediate release [36] . I believe the tangible facts were there, and one cannot turn a blind eye to them. Right after the commission of the crime in 2004, there had been statements from official persons, such as the Azerbaijani Ombudsman, the Ambassador and Permanent Representative of Azerbaijan to the Council of Europe and members of parliament who had spoken favourably of R.S. and praised his patriotism. Hungary was also aware of the tense relations between Armenia and Azerbaijan, and could therefore deduce the special meaning of R.S. for the Azerbaijani government, as the majority themselves admit [37] . Lastly, the statement of assurance by Azerbaijan should have been analysed closely. Such an abstract statement ought to have made the Hungarian government sceptical and they should have – taking into account all of the circumstances surrounding R.S.’s case – as a minimum, required diplomatic assurances from Azerbaijan. Instead, Hungary chose to wilfully ignore the signs that R.S., a murderer convicted for an “exceptionally cruel” [38] ethnically and religious-based crime, would be set free.

24. The above-mentioned arguments lead me inevitably to the conclusion that there has been a violation by Azerbaijan of Article 2 of the Convention in its substantive limb, as well as a violation by Hungary of Article 2 of the Convention in its procedural limb. In view of the extremely important and novel nature of the legal issues at stake in the present case and the high-profile nature of the facts, the pardoning of an “extremely cruel hate crime” [39] , and of the people involved in them, namely the Prime Minister and Minister of Defence of Hungary and the President, Minister of Defence and Minister of Justice of Azerbaijan [40] , and considering that the case “raises questions of a general character affecting the observance of the Convention” [41] , I cannot but expect that this tragic case will be submitted to further reflection by the Grand Chamber. Hopefully one day full justice will be done to the applicants.

[1] The text as submitted by the applicants refers to “liberation”.

[2] See, for example, Noble Ventures, Inc. v. Romania , Award, ICSID Case No. ARB/01/11, 12 October 2005, para 69: “While those Draft Articles are not binding, they are widely regarded as a codification of customary international law.”

[3] For an historical introduction to this article, see Olivier De Frouville, “Attribution: Private Individuals”, in James Crawford and others, The Law of International Responsibility , Oxford, Oxford University Press, pp. 273-275.

[4] Kenneth P. Yeager v. The Islamic Republic of Iran , Iran–U.S. C.T.R., vol. 17 , p. 92, at pp. 101–102 (1987).

[5] See § 170 of the judgment.

[6] See § 25 of the judgment.

[7] See § 217 of the judgment.

[8] See § 220 of the judgment.

[9] See § 170 of the judgment.

[10] See § 217 of the judgment.

[11] United Nations Legislative Series, Materials on the Responsibility of States for Internationally Wrongful Acts, ST/LEG/SER.B/25 at 94 (2012).

[12] Prosecutor v. Dragan Nikolic (“Sušica Camp”), Trial Chamber II, Decision on Defence Motion Challenging the exercise of Jurisdiction by the Tribunal on 9 October 2002 [IT-94-2-PT], § 61.

[13] Ibid, § 66.

[14] Ibid, § 67.

[15] Award by the British-Colombian Mixed Commission in the Cotesworth and Powell Case of 5 November 1875, cited in R. Ago, 4th Report on State Responsibility, ILC Yearbook 1972, Vol. II, 101 (para. 7). See also the Award by the Italian-Venezuelan Commission in the Poggioli Case in Reports of International Arbitral Awards, volume X (1903), pp. 669-692, which found Venezuela responsible for damage inflicted upon the property of a foreigner where it had allowed serious offences to be committed against him personally and the offenders, although known, to go unpunished.

[16] See § 215 of the judgment.

[17] See § 168 of the judgment.

[18] See § 172 of the judgment.

[19] Cited above, footnote 14.

[20] See § 162 of the judgment.

[21] Council of Europe Parliamentary Assembly (PACE), Resolution 2022 (2014) on the measures to prevent abusive use of the Convention on the Transfer of Sentenced Persons (ETS No. 112), 18 November 2014.

[22] Idem.

[23] See § 42 of the judgment (point 3 of the Resolution).

[24] See § 163 of the judgment.

[25] See § 162 of the judgment.

[26] Airey v. Ireland , no. 6289/73, § 24, 9 October 1979.

[27] See, inter alia , Dvorski v. Croatia , no. 25703/11, § 82, 20 October 2015; Erkapić v. Croatia , no. 51198, §§ 80 ‑ 82, 25 April 2013; and for older cases, De Jong, Baljet and Van den Brink v. the Netherlands , 22 May 1984, § 48, Series A no. 77, and Delcourt v. Belgium , 17 January 1970, § 31, Series A no. 11.

[28] Award by the Italian-Venezuelan Commission in the Poggioli Case in Reports of International Arbitral Awards, volume X (1903), p. 689.

[29] Reuters, 11 September 2012; see https://www.reuters.com/article/us-hungary-azerbaijan/hungary-handed-over-azeri-killer-aware-of-backlash-risks-pm-idUSBRE88A10020120911 (last consulted 16 March 2020).

[30] See, for example, Avotins v. Latvia [GC], no. 17502/07, §§ 68 and 122, 23 May 2016; Al Hamdani v. Bosnia and Herzegovina , no. 31098/10, § 47, 7 February 2012; and Jabari v. Turkey , no. 40035/98, § 44, 11 July 200, in which the Court took “judicial notice of recent surveys of the current situation in Iran”. The Inter-American Court of Human Rights employed the “notorious facts” doctrine in Velasquez Rodriguez v. Honduras (Merits, 1988), § 146, referring to newspapers and stating that “many of them contain public and well-known facts which, as such, do not require proof”. For domestic law references, see the foundational case Lumley v. Gye (1853) 2 E & B 216: “Judges are not necessarily ignorant in court to what everybody else out of court are familiar with …” The test is: “when facts are so notorious that it would be an affront to the common sense of judges and the dignity of the court to require proof of them they can be judicially noticed”.

[31] See Prof. Dr. Szabo Máté, Report of the Commissioner for Fundamental Rights on the case AJB-7085/2012, at 5 (07-12-2012).

[32] Ibid, at 2.

[33] See PACE Resolution 2014, supra note 2.

[34] See § 19 of the judgment (my italics).

[35] See § 34 of the judgment.

[36] See § 196 of the judgment: “Although the reply of the Azerbaijani authorities was 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, as concluded by the Hungarian Commissioner for Fundamental Rights”.

[37] See § 163 of the judgment.

[38] See § 213 of the judgment.

[39] See § 220 of the judgment.

[40] See §§ 19-21 of the judgment.

[41] See § 72 of the judgment.