CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 26 mai 2020

.s800EAC49 { font-size:12pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .s2BF5EB6D { margin-top:24pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC285E03B { margin-top:12pt; margin-bottom:24pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s780F5245 { border:0.75pt solid #000000; clear:both } .sE77B86B8 { margin-top:0pt; margin-bottom:0pt; text-align:justify; padding-top:1pt; padding-right:4pt; padding-left:4pt } .sEC28DD31 { margin-top:0pt; margin-bottom:0pt; text-align:justify; padding-right:4pt; padding-left:4pt } .sD423F84E { margin-top:0pt; margin-bottom:0pt; text-align:justify; padding-right:4pt; padding-left:4pt; padding-bottom:1pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sFFD057F { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s684237A1 { margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase; list-style-position:inside } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sB853CD26 { font-family:Arial; font-size:8pt } .s2182C584 { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase; list-style-position:inside } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s5DB05C72 { margin-left:28.6pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-weight:bold; text-transform:none } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .sC3C29E73 { margin-top:14pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase; list-style-position:inside } .s76C7ECA6 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10.5pt } .s4B8D41EE { font-family:Arial; font-size:10pt } .s2CE7C1B9 { font-family:Arial; font-size:10pt; font-style:italic } .sD3E661B4 { margin:6pt 42.55pt; text-indent:7.1pt; text-align:justify; font-size:8pt } .s2073E014 { margin:6pt 42.55pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sAA38361A { margin-top:14pt; margin-left:17.85pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase } .s37839E0D { margin-left:10.75pt; margin-bottom:12pt; text-indent:0pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-weight:bold; text-transform:none } .sFBC99493 { font-style:italic } .sC6C7C49B { margin-left:7.35pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-weight:normal; font-style:italic } .sD0682254 { margin-top:0pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s30C8A987 { width:4.78pt; font:7pt 'Times New Roman'; display:inline-block } .sB2ED4664 { margin-top:14pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4E0353E8 { width:4.23pt; font:7pt 'Times New Roman'; display:inline-block } .sF7610474 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .s980E2CFD { margin-top:0pt; margin-left:59.55pt; margin-bottom:6pt; text-indent:-17.9pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s6FC64B9D { width:2.78pt; font:7pt 'Times New Roman'; display:inline-block } .sE4EB4F8C { margin-top:14pt; margin-left:59.55pt; margin-bottom:6pt; text-indent:-17.9pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s61E420C2 { font-family:Arial; font-variant:small-caps } .s20FC8552 { font-family:Arial; font-size:11.5pt } .sD0489F03 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sBAD0D18F { width:1.87pt; display:inline-block } .s165BD465 { width:190.1pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s66E9FC38 { font-family:Arial; font-size:8pt; vertical-align:super; color:#000000 } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sB343B0AA { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#000000 } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .sB853CD25 { font-family:Arial; font-size:9pt } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .sB6D33163 { font-family:Arial; font-size:10pt; text-decoration:underline; color:#0069d6 } FOURTH SECTION CASE OF MAKUCHYAN AND MINASYAN v. AZERBAIJAN AND HUNGARY (Application no. 17247/13) JUDGMENT   Art 2 (procedural) • Azerbaijan’s unjustified failure to enforce prison sentence for ethnic hate crime, imposed abroad on its officer, who was pardoned, promoted and awarded benefits upon return • Insufficient evidence of flawed criminal proceedings in Hungary • Officer not suffering from serious mental condition • Lack of legal basis for military promotion and other benefits • Resulting impunity incompatible with State’s obligation to effectively deter the commission of offences against lives Art 2 (substantive) • Life • Azerbaijan’s “approval and endorsement” of crimes committed by its agent in private capacity, without clear and unequivocal “acknowledgement” and “adoption” of crimes “as its own” • Very high threshold under international law for State responsibility for an act otherwise non-attributable to a State • Cumulative conditions of “acknowledgement” and “adoption” of impugned act as having been perpetrated by State not fulfilled • Domestic monitoring of military officers’ compliance with professional standards not inadequate Art 2 (procedural) (Hungary) • No failure by Hungary to ensure that Azerbaijani national would continue to serve his prison sentence upon transfer to home country • Procedure set out in the Council of Europe Convention on Transfer of Sentenced Persons followed in entirety • No evidence that Hungarian authorities were or should have been aware that the convicted prisoner would be released in Azerbaijan Art 14 (+ Art 2) • Azerbaijan’s failure to disprove arguable allegation of discrimination • State measures leading to the officer’s impunity having causal link to the Armenian ethnicity of his victims • Officer glorified by high-ranking officials for his extremely cruel hate crime Art 38 • Respondent States’ compliance with their obligation to furnish all necessary facilities   STRASBOURG   26 May 2020   FINAL   12/10/2020   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Makuchyan and Minasyan v. Azerbaijan and Hungary, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Ganna Yudkivska, President ,   Vincent A. De Gaetano,   Paulo Pinto de Albuquerque,   Robert Spano,   Faris Vehabović,   Egidijus Kūris,   Lәtif Hüseynov, judges , and Marialena Tsirli, Section Registrar , Having deliberated in private on 5 June 2018, 25 June 2019, 17   September 2019 and 3 December 2019, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 17247/13) against Azerbaijan and Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Armenian nationals, Mr Hayk Makuchyan and Mr Samvel Minasyan (“the applicants”), on 25 February 2013. On 27   April 2016 Mr Minasyan’s legal representatives informed the Court that Mr   Minasyan had died on 8 October 2013 and that his widow, Ms Gayane Nikoghosyan, and their two children, Ms Seda Minasyan and Mr Nshan Minasyan, had stated that they would like Mr Minasyan’s case to proceed. 2.     The applicants were represented by Mr P. Leach and initially also by Mr V. Grigoryan, lawyers practising in London, and by Mr H. Harutyunyan, Mr L. Gevorgyan, and initially also by Ms S. Sahakyan, lawyers practising in Yerevan. The Azerbaijani Government were represented by their Agent, Mr Ç. Əsgərov. The Hungarian Government were represented by their Agent, Mr Z. Tallódi. 3.     Mr Péter Paczolay, the judge elected in respect of Hungary, withdrew from sitting in the case (Rule 28 § 3 of the Rules of Court). The President of the Chamber accordingly appointed Mr Robert Spano, the judge elected in respect of Iceland, to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1). 4 .     The applicants alleged, in particular, that Azerbaijan had violated Article 2 of the Convention by granting a presidential pardon to a person who had killed the second applicant’s relative and attempted to kill the first applicant and who had been sentenced to life imprisonment in Hungary. They also complained that there had been a violation of Article 14 taken in conjunction with Article 2 because the Armenian ethnic origin of the victims had been the main reason for the murder at issue and for the various subsequent actions of the Azerbaijani authorities, including the pardon and the glorification of the perpetrator. Finally, the applicants complained that Hungary had violated Article 2 of the Convention by granting a request for the transfer of the prisoner without obtaining adequate binding assurances to the effect that he would be required to complete his prison sentence in Azerbaijan. 5 .     On 12 January 2016 the application was communicated to the respondent Governments. On 7 October 2019 the Court requested further factual information from the respondent Governments. 6.     In addition to written observations by the respondent Governments and the applicants, third-party comments were received from the Armenian Government, who had exercised their right to intervene in the case (Article 36 § 1 of the Convention and Rule 44 § 1 (b)). THE FACTS THE CIRCUMSTANCES OF THE CASE 7.     The first applicant was born in 1975 and lives in Ejmiatsin. The second applicant was born in 1958 and lived in Yerevan. The first applicant is a member of the Armenian military. The second applicant was the uncle of the deceased G.M., who was a lieutenant in the Armenian army. Events of 19 January 2004 8.     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 Hungary’s National Defence University. 9.     At 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 at least twelve blows of an axe. R.S. then tried to break down the door of the first applicant’s room, allegedly yelling “Open the door, you Armenian! We will cut the throats of all of you!” He was ultimately stopped by the police who had meanwhile arrived at the scene. 10.     The Azerbaijani Government disputed whether R.S. had really yelled out “We will cut the throats of all of you!” They argued that only the first applicant had testified to that effect. Criminal proceedings in Hungary 11 .     In subsequent criminal proceedings, R.S. was questioned by the police four times during the investigation. The first round of questioning took place on 19 February 2004 in the presence of a court-appointed defence lawyer and, at R.S.’s request, an interpreter from Hungarian into Russian. During the questioning, which lasted for three hours, R.S. gave a detailed account of the events. He said that he strongly disliked Armenians because he had lost relatives in the Nagorno-Karabakh conflict. As for the Armenian participants in the language course, R.S. said they had provoked and mocked him and the Azerbaijani flag on several occasions, which was why he had decided to buy an axe and kill them on the anniversary of the beginning of the conflict between Armenia and Azerbaijan over the Nagorno-Karabakh region (for general background information, see Chiragov and Others v. Armenia [GC], no.   13216/05, §§ 12-31, ECHR 2015, and Sargsyan v. Azerbaijan [GC], no.   40167/06, §§ 14-28, ECHR 2015). For that purpose, he had bought an axe and a sharpening stone in a local store two days prior to the killing. R.S. also admitted that he had murdered G.M. on account of his Armenian origin; he showed no remorse for the crimes committed. 12.     At the third round of questioning R.S. said for the first time that, although he spoke Russian, he did not always understand the Russian-language interpreter he had been provided with. At the fourth round of questioning, at his request, R.S. was provided with an interpreter from Hungarian into his native language. 13 .     The Azerbaijani Government disputed whether R.S. had killed G.M. solely on account of his Armenian nationality. To that end, they produced an affidavit lodged by R.S.’s defence lawyer during the appeal stage of the proceedings, which stated that there was no reasonable evidence that the crime had been committed either because of the Armenian origin of the victim or with extreme brutality. The affidavit also stated that R.S.’s defence rights had been seriously violated during his trial in Hungary. In particular, he had not been informed of his rights during the police questioning and he had initially been provided with an interpreter from Hungarian into Russian, a language which he did not understand. 14.     During the criminal proceedings, R.S. was also subjected to four expert psychiatrist examinations. The reports of two of those examinations established that R.S. had been able to understand the danger and the consequences of his actions. Although he had had limited consciousness at the material time, he had not been suffering from a pathological state of mind, rather one which could be considered as healthy but reflecting the gravity of the situation. One of the other psychiatric reports stated that R.S. suffered from post-traumatic stress disorder, and one report was deemed unacceptable by the court since it had failed to provide replies to relevant questions. 15 .     On 13 April 2006 the Budapest High Court found R.S. guilty of the exceptionally cruel and premeditated murder of G.M. and of the preparation of the murder of the first applicant. The court also concluded that the crimes had been committed with vile motives and exclusively because of the Armenian nationality of the victims. The first-instance court considered all four psychiatric reports and gave detailed reasons for accepting the conclusions of two of them. It also examined in detail the issue of the alleged premeditation of the crimes, R.S.’s proficiency in Russian (concluding that he had been fluent in that language) and the seriousness of his intent to kill the first applicant. R.S. was sentenced to life imprisonment, with a possibility of conditional release after thirty years. 16.     R.S. appealed against the first-instance judgment, claiming, in substance, that because of his poor command of Russian, his psychiatric examinations had not been properly conducted. He also claimed that he had not bought the axe in order to kill the Armenian participants on the course, but for self-defence. 17.     The first-instance judgment was upheld by the Budapest Court of Appeal on 22 February 2007. The second-instance court observed that, as regards the language issue, R.S. had been offered an interpreter into whichever language he requested. It also observed that the first-instance court had paid attention to establishing the mental capacity of R.S. by conducting multiple assessments of his mental state, confronting the various experts with each other and committing no faults of logic in its assessment. R.S. was sent to serve his sentence in a Hungarian prison. R.S.’s transfer to Azerbaijan 18.     R.S. requested to be transferred to Azerbaijan in 2006 and 2008 in order to enable him to serve his prison sentence in his home country. Both requests were refused by the Hungarian authorities, allegedly owing to another unrelated set of criminal proceedings for violence against a prison guard that had been pending against him in Hungary (see paragraph 188 below). 19 .     On 12 July 2012 Azerbaijan lodged a fresh request for R.S.’s transfer. Upon a request by the Hungarian authorities under Article 6   §   1 (c) of the Council of Europe Convention on the Transfer of Sentenced Persons (“the Transfer Convention”, see paragraph 38 below), on 15   August 2012 Azerbaijan’s Ministry of Justice informed them 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. In addition, the letter stated that in Azerbaijan a person serving a life imprisonment sentence could only be released on parole after serving at least twenty-five years of the sentence. On 17 August 2012 the Hungarian Minister of Justice agreed to R.S.’s transfer to Azerbaijan with a view to his serving the remainder of his sentence there. 20 .     On 31 August 2012 R.S. was transferred to Azerbaijan. On arrival, he was set free on the basis of a presidential pardon that had been issued on the same day. 21 .     On 1 September 2012 R.S. was promoted to the rank of major by the Minister of Defence in a public ceremony. On 6   December 2012 he was provided with the use of a flat belonging to the State housing fund and, on an unknown date, he was also awarded eight years of salary arrears. 22.     Following R.S.’s release, on 31 August 2012 the Hungarian Government issued a statement in response to the transfer and pardon of R.S., reiterating the conditions for such a transfer under the Transfer Convention. Furthermore, it reiterated the fact that the Azerbaijani Ministry of Justice had stated that the act for which the sentence had been imposed constituted a criminal offence in Azerbaijan punishable by life imprisonment with the possibility of being released at the earliest only after twenty-five   years. Additionally, assurances had been received that R.S.’s sentence would not be converted but would instead continue to be enforced, pursuant to the judgment of the Hungarian courts. 23.     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, emphasising that it had acted in accordance with all the relevant international rules. 24 .     A report issued by the Hungarian Commissioner for Fundamental Rights on 7 December 2012 observed that the transfer of R.S. had actually been approved (though not enforced) before any assurances had been received from the Azerbaijani authorities. In the Commissioner’s opinion the Hungarian authorities ought to have requested assurances from Azerbaijan that it would not grant a pardon to R.S. – at least not without Hungary’s prior knowledge. The failure to do so had endangered the rule of law and the requirement of legal certainty. The Commissioner further stressed that the Hungarian authorities should have been aware of the fact that, upon his transfer, R.S. would be pardoned and that the societies of the two countries assessed his acts in fundamentally different ways. Statements by Azerbaijani officials and public figures 25 .     The applicants pointed out that a special section had been set up on the web page of the President of Azerbaijan labelled “Letters of Appreciation regarding [R.S.]”, where individuals could express their congratulations on his release and pardon. They also submitted the statements cited verbatim below, which, according to them, were made by various Azerbaijani officials and public figures and other individuals, either after the killing and attempted murder, or following the granting of R.S.’s pardon. The Azerbaijani Government have not contested the veracity of these statements. “[R.S.] should become an exemplary model of patriotism for the Azerbaijani youth.” Elmira Suleymanova, Azerbaijani Ombudsman (2004). “Armenians should better not sleep peacefully as long as the Karabakh conflict is unsettled, the possibility of incidents similar to the one in Budapest cannot be ruled out.” Agshin Mehdiyev, Ambassador, Permanent Representative of Azerbaijan to the Council of Europe (2004). “... If at present stage, the Azerbaijani public does not manage to rescue [R.S.] from the hands of the Armenian diaspora, we will not be able to win the war for the liberation of the occupied Azerbaijani lands in the future.” Gultekin Gajiyeva, then a member of the Azerbaijani delegation to the Parliamentary Assembly of the Council of Europe (2004). “If we do not manage to defend [R.S.] now, no Azerbaijani will bear arms against the Armenians in case of need in the future.” Zakhid Oruj, Azerbaijani member of parliament (2004). “[R.S.] must become a symbol of patriotism for the Azerbaijani youth. We therefore ask for high distinction of the Azerbaijani officer for such courage.” The Organisation for the Liberation of Karabakh (2005). “Dear [R.S.]! Congratulations! Inshallah, I wish that you celebrate your thirty-fifth birthday at home. After having met you in the Hungarian jail and a long talk with you, I am grateful to fate that I am closely acquainted with such a patriotic young man who loves his country.” An Azerbaijani Member of Parliament (2011). “We all dream that [R.S.], being a role model for any Azerbaijani citizen, returns to the motherland. However, unfortunately, that is still impossible. So what are the reasons it has not been possible to achieve his extradition? Of course, our enemies hinder that, they exert every possible effort to prevent his return to the motherland. And that is understandable – they have no heroes like [R.S.] and will never have; ones who love their motherland, their people, love their nation more than themselves and care for its honour. As for us, we have many young men and women like [R.S.], who are selfless patriots.” Elnara Kerimova (2011). “[R.S.] hacked an Armenian officer to death with an axe in 2004. At first people supported him, and then forgot him. When Eynullah Fatullayev was in custody, there were more people with bleeding hearts for him, than for [R.S.] who killed an Armenian serf.” Cinare Vuqar (2011). “At present, conferral of the title of a national hero upon [R.S.], who is a hostage in a Hungarian prison, may become a pillar and basis for raising patriotic and combat spirit of the Azerbaijani youth ... He was forced to choose that path, and as a true officer, he punished – in a truly Turkish way – the man who insulted the flag of the independent Azerbaijan. The motherland must evaluate this deed on the merits. Mr President! On behalf of the Azerbaijani youth, we ask you, as the President and the Commander-in-Chief of the armed forces to confer a title of a national hero upon [R.S.] and to perpetuate his name.” Zaur Aliyev, head of the “Diaspora and Lobby” Centre for Strategic Research (2011). “[R.S.] has been released! Congratulations, Azerbaijani people! We are grateful to the President of the country for returning [R.S.] to Azerbaijan and for pardoning him.” Ganira Pashayeva, Member of Parliament (2012). “[R.S.] has fulfilled his duty before the Azerbaijani people; the State and the public have evaluated [R.S.] on the merits.” Akif Nagi, Chairman of the Organisation for the Liberation of Karabakh (2012). “The decree of the Azerbaijani President Ilham Aliyev on pardoning is worthy of the highest praise. The Ministry of Defence has been glad to hear the news on [R.S.’s] extradition from Hungary to Azerbaijan and the further pardon of him.” Teymur Abdullayev, deputy head of the Azerbaijani Ministry of Defence’s press office (2012). “It has become yet another proof of humanism of President Ilham Aliyev, of his care for Azerbaijani citizens.” Elmira Suleymanova, Azerbaijani Ombudsman (2012). “For this reason it is necessary to create conditions for service of such officers as [R.S.], who are willing to sacrifice themselves, patriots of Azerbaijan.” Bahar Muradova, Azerbaijani Vice-speaker of Parliament (2012). “Several thousands of representatives of Azerbaijani Diaspora of Ukraine have been very happy to learn about extradition and pardon of the officer of Azerbaijani army, [R.S.].” Hikmet Javadov, delegate to the Congress of Azerbaijanis in Ukraine (2012) “The handover of [R.S.] to the Azerbaijani side and his pardon is a heart-warming event for the whole Azerbaijan and is an evidence of triumph of justice.” Rauf Mardiyev, Chairman of the Ireli Public Union (2012). “And I am absolutely sure that it is quite natural that [R.S.] was welcomed in Azerbaijan as a hero.” Geydar Dzhemal, Political Analyst, Chairman of the Islamic Committee of Russia (2012). “Having granted a pardon to [R.S.], the President of Azerbaijan explained to the whole world that people working for their Homeland should protect it.” Araz Alizade , Chairman of the Social Democratic Party (2012). “In my opinion, the decision related to his extradition was a right one. And it is adequate that the Head of the State adopted the decision on granting pardon so quickly, without looking back on the Armenian clamours. It also coincides with public expectations.” Rasim Musabekov, Azerbaijani member of parliament (2012). “In our opinion it is a fair decision, which undoubtedly makes our enemies worry. However, we don’t care, for the aim of each Azerbaijani is to fight against his enemies, wherever he is.” Abulfaz Garayev, Azerbaijani Minister of Culture and Tourism (2012). “People accepted the order of the President of Azerbaijan on granting pardon after the extradition to Azerbaijan with great pleasure and satisfaction.” Ali Akhmedov, Deputy Chairman of PYA, its Executive Secretary, Member of Parliament. “[R.S.] was returned to his homeland and on that very day the order on granting a pardon to him was signed. I think it’s important that the given problem between Hungary and Azerbaijan is solved, and those having worked for it deserve praise. [R.S.] was severely punished for his actions, for his serious mistake, in the course of his stay in Hungary he behaved particularly faultlessly, learned the language, translated books. His arrival to his homeland, his release, is a very positive fact, congratulations to his family and relatives.” Isa Gambar, leader of the Musavat Party (2012). “I personally assess the order of the President of Azerbaijan on granting pardon to R.S. as a courageous and brave step taken by the Head of State, as well as restoration of justice ... Let’s not forget that [R.S.] and Nagorno-Karabakh are victims of the Armenian provocations. [R.S.] is free, now it is Nagorno-Karabakh’s turn, which will be independent very soon. The day is close when President Ilham Aliyev, Supreme Commander-in-Chief of the country, will declare the independence [1] of Nagorno-Karabakh.” Ali Ahmedov, Deputy Chairman of the Yeni Azerbaijan party (2012). “The granting of a pardon to [R.S.], officer of the Azerbaijani army, by President Ilham Aliyev is a very happy event ... [R.S.’s] extradition from Hungary to Azerbaijan and the pardon granted to him logically derive from the policy pursued by the President of Azerbaijan on releasing officer-patriots ... Logically, [R.S.’s] release is the proof of attention paid to our patriots and people with national spirit ... The actions taken by [R.S.] then were forced. Showing disrespect to our nation, hurting our feelings by an Armenian made him take that step ... [R.S.’s] moral superiority was shown during his imprisonment.” Mubariz Qurbanii, Deputy Executive Secretary of the Yeni Azerbaijan party, and Member of Parliament (2012). “This brave step taken by the Head of State shows that, as President of Azerbaijan and Supreme Commander-in-Chief, he supports every national, every soldier and officer of Azerbaijan. This is also an appeal for solidarity to all the Azerbaijani people in front of the enemy.” Fuad Aleskerov, head of the Azerbaijani presidential administration’s Department for Work with Law-enforcement Bodies (2012). “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 ... The Armenian party launched an anti-Azerbaijani campaign, made up all kinds of slander with respect to this matter. That is why the steps for [R.S.’s] transfer to Azerbaijan should have been taken in full secrecy. For a year, secret negotiations and correspondence were conducted under the strict control of President Ilham Aliyev, including with law ‑ enforcement bodies of Hungary. The agreement reached during the visit of Viktor Orbán, Prime Minister of Hungary, to Azerbaijan, played a crucial role in this matter. [R.S.] was transferred to Azerbaijan due to the determination and will of the President of Azerbaijan.” Novruz Mammadov, head of the Azerbaijani presidential administration’s Foreign Relations Department (2012). “[R.S.’s] release strengthened the authority of the nation. [R.S.] is not only the son of his father, but he is also the representative of the Azerbaijani people ... this event may enhance the national spirit ... [R.S.] will fight against the Armenians at the Karabakh front. I am sure that people congratulating each other today will congratulate each other for the liberation of the occupied lands.” Zahid Orudj, member of the Azerbaijani Parliamentary Commission on Defence and Security (2012). 26 .     The Azerbaijani Government submitted the following statements by various officials: “... The question of the extradition of [R.S.] was a national and public issue of Azerbaijan in every sense of the word ... Of course, the act committed by [R.S.] has never been approved by the authorities of Azerbaijan; for that act he was arrested by the Hungarian court, and we believe that this corresponds to committed act. But there is one question that Azerbaijani society has discussed for several years. ... At that time, the Hungarian court treated [R.S.] too cruelly, and imposed an inappropriate punishment on him, under heavy pressure from the Armenians, including the pressure of the representatives of some of the pro-Armenian diaspora, and foreign organisations ... For the crime committed by [R.S.], European countries, Azerbaijan, and Armenia itself and others impose a punishment of fifteen years, and after serving half the sentence, a prisoner, falling under an amnesty for good behaviour, is released. Therefore, the punishment passed by the Hungarian court for eight and a half years has continuously been assessed by Azerbaijani people as an inappropriate decision ... The result is obvious, and today, after eight and a half years of serving the sentence, the Azerbaijani society regards [R.S.’s] release as a just act. In fact, the President of Azerbaijan pardoned [R.S.] using both the opinion formed during that time, and the possibility, created by Azerbaijani law as well ... The Azerbaijani authorities and socio-political circles do not assess the act committed by [R.S.] as heroic ... We believe that R.S. had to answer for what he did, and he did answer. But the inappropriateness of the sentence passed against him to some extent has inclined the Azerbaijani public towards [R.S.] ...” Ali Hasanov, head of the Azerbaijani presidential administration’s Social and Political Department (2012). “As far as the issue of glorification is concerned, then the facts are clearly distorted in order to blow them up. Even though we brought tragic reasons, which led to a grave event, [R.S.’s] actions were never approved or justified at the official level. He was not welcomed by the high officials ...” Statement by the delegation of the Ministry of Justice of Azerbaijan to the Council of Europe’s thirty-first Conference of Ministers of Justice (2012). RELEVANT DOMESTIC LAW Azerbaijan 27.     The Constitution of the Republic of Azerbaijan of 12   November 1995, as amended by the referendum of 24 August 2002, provides as follows: Article 109 Powers of the President of the Republic of Azerbaijan “The President of the Republic of Azerbaijan: ... 22.     [is empowered to] grant a pardon; ...” Article 113 Acts of the President of the Republic of Azerbaijan “I.     When establishing general rules, the President of the Republic of Azerbaijan shall issue decrees, and in respect of other questions, he or she shall issue orders.” Article 130 The Constitutional Court of the Republic of Azerbaijan “III.     The Constitutional Court of the Republic of Azerbaijan, on the basis of a request submitted by the President of the Republic of Azerbaijan, the Milli Majlis of the Republic of Azerbaijan, the Cabinet of Ministers of the Republic of Azerbaijan, the Supreme Court of the Republic of Azerbaijan, the Prosecutor’s Office of the Republic of Azerbaijan, and the Ali Majlis of the Autonomous Republic of Nakhchyvan, shall resolve the following issues: 1.     the conformity of laws of the Republic of Azerbaijan, decrees and orders of the President of the Republic of Azerbaijan, resolutions of the Milli Majlis of the Republic of Azerbaijan, resolutions and orders of the Cabinet of Ministers of the Republic of Azerbaijan, and normative legal acts of central executive bodies with the Constitution of the Republic of Azerbaijan; 2.     the conformity of decrees of the President of the Republic of Azerbaijan, resolutions of the Cabinet of Ministers of the Republic of Azerbaijan, and normative legal acts of central executive bodies with laws of the Republic of Azerbaijan; ... V.     Every person shall have the right to lodge, in accordance with the procedure provided by law, complaints with the Constitutional Court of the Republic of Azerbaijan against normative acts of the legislative and executive authorities, acts of municipalities, and judicial acts infringing his or her rights and freedoms, for resolution by the Constitutional Court of the Republic of Azerbaijan of the issues referred to in items 1-7 of Paragraph III of the present Article, for the purpose of restoration of his or her violated rights and freedoms.” 28 .     The relevant provisions of the Code of Criminal Procedure of Azerbaijan provide as follows: Article 56 Persons entitled to damages “56.0.     The following persons shall have the right to compensation for the damage caused through error or abuse by the prosecuting authority: 56.0.1.     an accused who is acquitted; 56.0.2.     a person against whom a criminal prosecution is discontinued ...; 56.0.3.     a person against whom a criminal prosecution should have been discontinued ... but was not discontinued in a timely manner and was pursued further. 56.0.4.     a person against whom a criminal prosecution should have been discontinued ..., but which was continued even though the decision [on discontinuation] was upheld; 56.0.5.     a person unlawfully arrested or placed in a medical or educational institution by force or a person kept in detention on remand without legal grounds for longer than the prescribed period of time; 56.0.6.     a person unlawfully subjected to coercive procedural measures during criminal proceedings ...” Article 57 Characteristics of compensation “57.1.     The persons stipulated in Article 56 of this Code shall be paid compensation for non-material, physical and material damage resulting from error or abuse by the prosecuting authority. These persons’ residence and labour rights shall also be restored; if that is not possible, they shall be guaranteed financial compensation for a breach of these rights ...” Article 58 Compensation for damage suffered “58.1.     Material damage as a result of error or abuse by the prosecuting authority shall be substantiated, then calculated and compensated for in full. 58.2.     Compensation for pecuniary and non-pecuniary damage shall be paid on the basis of a fair assessment by the court if no other statutory arrangement is laid down. 58.3.     Compensation shall be paid as follows to the persons stipulated in Article 56 of this Code for: 58.3.1.     loss of salary, pension, allowances and other income; 58.3.2.     loss of property caused by forfeiture, transfer to the State, removal by the investigating authorities or distraint; 58.3.3.     legal costs; 58.3.4.     fees paid to defence counsel; 58.3.5.     fines paid or taken during the execution of the sentence ...” Article 59 Restoration of other rights in relation to compensation for damage “59.1.     The persons provided in Article 56 of this Code shall have the following rights regarding compensation for damage suffered: 59.1.1.     to be reinstated in their previous position; if that is not possible, to be appointed to an equivalent position or to receive financial compensation for loss of the previous position; 59.1.2.     for periods of deprivation of liberty and restricted liberty to be included in their [recorded] periods of employment; 59.1.3.     to return to their previous residence; if that is not possible, to move to equivalent accommodation with regard also to district and situation; 59.1.4.     to the restoration of any special or military rank; 59.1.5.     to the return of any honorary title or State award ...” 29 .     The Regulation on Pardons, approved by Order no. 538 of 18   July 2001 of the President of the Republic of Azerbaijan sets out the procedure to be followed in cases of pardons. It provides that a convicted person may apply for a pardon upon expiry of a certain period of time. A pardon application is to be submitted to the Commission on Pardon Issues ( Əfv Məsələləri Komissiyası ), operating directly under the authority of the President of the Republic of Azerbaijan. The Commission examines the case, consults the Prosecutor General and the Supreme Court, and delivers a recommendation to the President to refuse or to allow the pardon application. The relevant parts of the Regulation read as follows: I. General terms “1.     In accordance with Article 109 § 22 of the Constitution of the Republic of Azerbaijan, a pardon, being a discretionary power of the President of the Republic of Azerbaijan, is granted in respect of individually identified persons. Pardons shall be granted, as a rule, in line with the provisions of this Regulation. Decisions on pardons shall be formalised by an executive order of the President of the Republic of Azerbaijan. 2.     Pardons may be granted to nationals of the Republic of Azerbaijan, foreigners or stateless persons convicted by the courts of the Republic of Azerbaijan or the courts of other States and serving their sentence in the Republic of Azerbaijan. 3.     Further to the executive order of the President of the Republic of Azerbaijan: 3.1.     the convicted person may be released from serving the remaining part of the sentence; 3.2.     the term of imprisonment may be reduced; 3.3.     the remaining part of the sentence may be replaced with a lighter sentence. 4.     Further to the executive order of the President of the Republic of Azerbaijan, life imprisonment may also be replaced with imprisonment for a term not exceeding twenty-five years or the criminal record of the convicted person can be erased. ... II. Application for a pardon ... 8.     An application for a pardon may be submitted, as a rule, upon expiry of the following periods: ... 8.4. in relation to a person sentenced to life imprisonment – after serving ten years of the sentence ...” 30 .     The relevant parts of the Regulation on Military Service, approved by Law no. 377-IQ of 3 October 1997 of the Republic of Azerbaijan, read as follows: Chapter IV Military promotion “41.     Every military serviceman shall be assigned the relevant military rank depending on his or her service position, military and special education, duration of service, duration of being a reservist, belonging to a type and branch of the armed forces, achievements and other conditions provided in this Regulation. ... 42.     Military servicemen shall be advanced in rank consecutively according to their military position and following the expiry of their term of service in the previous rank. Military servicemen shall be advanced in rank, having regard to the provisions of this Article, as follows: junior rank officers – by the [Minister of Defence of the Republic of Azerbaijan]; senior rank officers – by the [Minister of Defence of the Republic of Azerbaijan]; general officers – by the [President of the Republic of Azerbaijan] upon submission of the [Minister of Defence of the Republic of Azerbaijan]. 45.     The following years in grade shall be defined: ... captain ... four years ... ... major ... five years ...” 31.     The relevant parts of Law no. 274-IVQ of 23   December 2011 on military duty and military service ( Hərbi vəzifə və hərbi xidmət haqqında qanun ) provide as follows: Article 32 “32.1     Servicemen who have demonstrated higher moral and military skills in the exercise of their military duties, achieved higher results in military preparedness and in strengthening military discipline, performed an exemplary service and executed military duties may be promoted early to a higher military rank after carrying out half of the service period provided for at the previous military rank (in times of war, regardless of the period of service).” Article 33 “33.1     Servicemen who have been convicted of a serious or an especially serious crime may be deprived of their military rank by a court decision.” Hungary 32.     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 for between five and fifteen years. 2.     The penalty shall be imprisonment for between ten and twenty years, or life imprisonment, if the homicide is committed: (a)     with premeditation; ... (c)     with other malice aforethought or with any other malicious motive; (d)     with particular cruelty; ... 3.     Any person who engages in preparations to commit homicide [may be punished] by imprisonment for between one and five years.” RELEVANT INTERNATIONAL MATERIALS 33.     Below is a selection of the legal documents which are most relevant to the applicants’ case. United Nations 34 .     Article 11 of the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“the Draft Articles”) reads as follows: Article 11 Conduct acknowledged and adopted by a State as its own “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.” 35 .     The relevant parts of the Commentary on Article 11 of the Draft Articles read as follows: “(4)     Outside the context of State succession, the United States Diplomatic and Consular Staff in Tehran case provides a further example of subsequent adoption by a State of particular conduct. There ICJ drew a clear distinction between the legal situation immediately following the seizure of the United States embassy and its personnel by the militants, and that created by a decree of the Iranian State which expressly approved and maintained the situation. In the words of the Court: ‘ The policy thus announced by the Ayatollah Khomeini, of maintaining the occupation of the Embassy and the detention of its inmates as hostages for the purpose of exerting pressure on the United States Government was complied with by other Iranian authorities and endorsed by them repeatedly in statements made in various contexts. The result of that policy was fundamentally to transform the legal nature of the situation created by the occupation of the Embassy and the detention of its diplomatic and consular staff as hostages. The approval given to these facts by the Ayatollah Khomeini and other organs of the Iranian State, and the decision to perpetuate them, translated continuing occupation of the Embassy and detention of the hostages into acts of that State.’ ... (5)     As regards State practice, the capture and subsequent trial in Israel of Adolf Eichmann may provide an example of the subsequent adoption of private conduct by a State. On 10 May 1960, Eichmann was captured by a group of Israelis in Buenos Aires. He was held in captivity in Buenos Aires in a private home for some weeks before being taken by air to Israel. Argentina later charged the Israeli Government with complicity in Eichmann’s capture, a charge neither admitted nor denied by Israeli Foreign Minister Golda Meir, during the discussion in the Security Council of the complaint. She referred to Eichmann’s captors as a ‘volunteer group’. Security Council resolution 138 (1960) of 23 June 1960 implied a finding that the Israeli Government was at least aware of, and consented to, the successful plan to capture Eichmann in Argentina. It may be that Eichmann’s captors were ‘in fact acting on the instructions of, or under the direction or control of’ Israel, in which case their conduct was more properly attributed to the State under article 8. But where there are doubts about whether certain conduct falls within article 8, these may be resolved by the subsequent adoption of the conduct in question by the State. (6)     The phrase ‘acknowledges and adopts the conduct in question as its own’ is intended to distinguish cases of acknowledgement and adoption from cases of mere support or endorsement. ICJ in the United States Diplomatic and Consular Staff in Tehran case used phrases such as ‘approval’, ‘endorsement’, ‘the seal of official governmental approval’ and ‘the decision to perpetuate [the situation]’. These were sufficient in the context of that case, but as