A soldier who beheaded an Armenian for nationalistic reasons becomes a hero in his country! The Court does not forgive and punishes!

JUDGMENT

Makuchyan and Minasyan v. Azerbaijan and Hungary 26.05.2020 (no. 17247/13)

see here 

SUMMARY

The case  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.

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.

PROVISIONS

Article 2,

Article 14,

Article 38

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.

THE 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 law2
set 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

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


ECHRCaseLaw

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