ECtHR on state responsibility for the right to life: the pardoning of an ethnically-motivated killing

18 August 2020 by

An Armenian protester holds pictures of Ramil Safarov, left, and Gurgen Margaryan during a demonstration outside the Hungarian embassy in Nicosia, Cyprus, in 2012. Photograph: Petros Karadjias/AP (Source: The Guardian)

Makuchyan and Minasyan -v- Azerbaijan and Hungary (Application No. 17247/13)

This recent judgment from the European Court of Human Rights arises from the 2012 transfer from Hungary to Azerbaijan of prisoner Ramil Safarov, a member of the Azerbaijani army, following his conviction in Hungary for the murder of an Armenian officer in 2004. In particular, the Court considered Article 2 ECHR (the right to life) in the context of (a) when a state can be held responsible for the actions of an individual carried out in a private capacity, and (b) the obligations on a state who transfers a prisoner to see out their sentence in their home state.

RS’s crimes, transfer and release

In February 2004, Azerbaijani army officer Ramil Safarov (RS) murdered Gurgen Margaryan (GM), one of two Armenian participants in a NATO-sponsored English language programme in Hungary, by decapitating him with an axe while he lay asleep. RS then tried to break down the door of the other Armenian participant, Hayk Makuchyan (HM), allegedly yelling, “Open the door, you Armenian! We will cut the throats of all of you!”, before he was stopped by the Hungarian police.

RS was tried and sentenced in Hungary to life imprisonment, with a possibility of conditional release after 30 years. During the criminal investigation in Hungary, RS gave evidence that he strongly disliked Armenians because he had lost relatives in the Nagorno-Karabakh conflict between the two countries, and that on several occasions during the programme GM and HM had provoked him and mocked both him and the Azerbaijani flag.

Source: Wikipedia

In July 2012, eight years into RS’s sentence, Azerbaijan lodged a request under the 1983 Council of Europe Convention on the Transfer of Sentenced Persons (the “Transfer Convention”) for RS to be transferred to his home country. Hungary agreed. However, as soon as RS arrived in Azerbaijan, he was granted a presidential pardon, set free, awarded a military promotion, and provided with an apartment and eight years of salary arrears. Various high-ranking government officials made statements in support of RS, including:

This event is a reason for happiness and pride for each of us. To see our soldier here, the faithful son of his nation, taken to prison only because he rose to protect the glory and honour of his homeland and people, is very impressive…

Novruz Mammadov, head of the Azerbaijani presidential administration’s Foreign Relations Department (2012)

On the website of the President of Azerbaijan, a special page was set up labelled “Letters of Appreciation regarding [RS]”, where members of the public could express their congratulations on RS’s release and pardon.

Article 2 ECHR

Article 2(1) ECHR, “Everyone’s right to life shall be protected by law […]”, creates both a substantive obligation on a state not to use lethal force through its agents, as well as a procedural obligation to enact and uphold laws which protect the right to life.

Azerbaijan: no substantive violation of Article 2

The Court held that, at the time of his crimes, RS was not acting in the exercise of his official duties as a member of the Azerbaijani military, but in his private capacity. To determine whether RS’s actions could be attributed to Azerbaijan for the purpose of Article 2, the Court adopted the test set out in Article 11 of the 2001 UN International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts (the “ILC Draft Articles”). This reads: 

Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own.

The ILC’s commentary to Article 11 further reads: 

The phrase “acknowledges and adopts the conduct in question as its own” is intended to distinguish cases of acknowledgment and adoption from cases of mere support or endorsement.

Although not binding, the ILC Draft Articles have been applied as customary international law. The Court noted that the threshold set out in the ILC Draft Articles is a high one. It compared RS’s case to the case in the International Court of Justice (ICJ) of United States Diplomatic and Consular Staff in Tehran, in which the ICJ found the seizure of the US embassy by Irani militants in 1979 to be attributable to Iran. In that case, Iran had issued a decree expressly approving and maintaining the hostage situation. In RS’s case, having reviewed the statements and actions of the Azerbaijani state in relation to RS’s crimes, the Court found that Azerbaijan had not gone so far as to adopt RS’s actions as its own and so had not breached its substantive obligations under Article 2 ECHR.

Azerbaijan: procedural violation of Article 2

The Court found that from the moment of RS’s transfer, Azerbaijan assumed responsibility for the enforcement of his prison sentence. From that time, Azerbaijan’s procedural obligations under Article 2 required it to provide an adequate response to such a serious crime. Instead, Azerbaijan’s response was to effectively treat RS as an innocent or wrongfully convicted person and grant him impunity for his crimes. The Court was not convinced by the arguments of the Azerbaijani government that (a) it had “humanitarian concerns for the history, plight and mental condition of RS”, or (b) the criminal proceedings in Hungary had been unfair. The Court found Azerbaijan to have breached its procedural obligations under Article 2.

Hungary: no procedural violation of Article 2

In contrast, the Court found that Hungary had not breached its procedural obligations under Article 2. It had followed the procedure set out in the Transfer Convention, including asking Azerbaijan to specify which of the two possible procedures it would adopt: (a) to continue the enforcement of RS’s existing sentence, or (b) to convert RS’s sentence into a decision of the Azerbaijani state and to substitute Azerbaijan’s own sanction. Azerbaijan’s response to Hungary’s request was vague and incomplete. Its letter only stated in general terms that, 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. However, the Court held that the evidence presented did not show that the Hungarian authorities unequivocally were, or should have been, aware that RS would be released upon his return to Azerbaijan.


As might be expected in a judgment of such political and legal significance, there are a number of controversial aspects to the Court’s decision.

One issue is the Court’s application of the ILC Draft Articles and its strict interpretation of the requirement that the state must show “acknowledgment and adoption of the act as the state’s own” in order to carry responsibility for an individual’s private acts. In other words, the Court emphasised the need for some kind of formal decision by the state’s authorities, showing an express intention to adopt the relevant conduct as its own. As this blog post points out, however, the two key cases quoted in the commentary to the ILC Draft Articles (the so-called “Lighthouses arbitration”, Affaire relative à la concession des phares de l’Empire Ottoman, UNRIAA, vol. XII, Sales No. 63.V.3 (1956), and the aforementioned ICJ United States Diplomatic and Consular Staff in Iran) do not make this standard clear, and in fact only phrase their decisions in terms of “approval” and “endorsement”. In his partially dissenting opinion to the Court’s judgment, Judge Pinto de Albuquerque suggests that a formal decision by state authorities may not be necessary in order to adopt the relevant conduct: instead he argues that Azerbaijan’s acknowledgment and adoption of RS’s acts can be inferred from its conduct.

Another issue is the Court’s finding that Hungary was not in breach of Article 2. Commentators have argued that this effectively gives approval to a rather low standard of due diligence on the part of states when responding to requests under the Transfer Convention. In his partially dissenting opinion, Judge Pinto de Albuquerque held that Hungary did in fact have sufficient knowledge of the risk and likelihood that Azerbaijan would release RS following his transfer, and should have requested specific assurances as to the continuation of his sentence in Azerbaijan. He emphasised a comment made by the Prime Minister of Hungary shortly after the release of RS, that:

Nothing happened after our decision that we would not have reckoned with in advance.

If the case is appealed to the Grand Chamber, these points are likely to be the subject of further discussion.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: