ECtHR on state responsibility for the right to life: the pardoning of an ethnically-motivated killing
18 August 2020
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.
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.