By Cedric Ryngaert and Kushtrim Istrefi
On 26 May 2020, the European Court of Human Rights rendered a chamber judgment in Makuchyan and Minasyan v. Azerbaijan and Hungary. The case concerns a soldier from Azerbaijan, R.S., who killed an Armenian soldier and attempted to kill another one while on a NATO training in Budapest. R.S. was sentenced by the Hungarian courts to life imprisonment for committing a serious hate crime. In 2012, following a request by Azerbaijan, R.S. was transferred to his home country to serve the rest of his sentence. However, upon his arrival in Azerbaijan, R.S. was pardoned and released. He was promoted in the army and his salaries since 2004 were reinstated. R.S. was appreciated and glorified as a national hero for what he did in Budapest.
The legal issues raised in the case are as unique as the facts. In this analysis, we examine three core issues addressed by the Court. The first issue was whether the acts of R.S. were attributable to Azerbaijan on the ground that the latter acknowledged and adopted them. The Court held that they were not, and accordingly, that Azerbaijan had not breached its substantive obligations under Article 2 ECHR, which protects the right to life. The second issue was whether, in failing to enforce the punishment of R.S., Azerbaijan had violated its procedural obligations under Article 2 ECHR. The Court ruled that it did indeed. The third question was whether Hungary violated the procedural limb of Article 2 ECHR by agreeing to transfer R.S. to Azerbaijan, a question which the Court answered in the negative. The Court’s decisions further develop European and potentially international (human rights) law, and therefore call for some closer analysis.
Azerbaijan’s substantive obligations under Article 2: attribution of conduct under the law of State responsibility?
Before the Court, the applicants contented that Azerbaijan had breached its substantive obligations under Article 2 of the Convention, which enshrines the right to life, on the ground that the conduct of R.S. – the murder and attempted murder of the Armenian soldiers – was attributable to Azerbaijan. The applicants attributed this conduct to Azerbaijan on the basis of the attribution rules under the law of State responsibility, in particular Article 11 of the International Law Commission (ILC)’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). Article 11 ARSIWA provides that “[c]onduct 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 applicants claimed that, by pardoning R.S., promoting him to the rank of major, and awarding him eight years of salary arrears and the use of a flat, Azerbaijan had acknowledged and adopted the conduct of R.S. as its own. The Court was of the view that, by taking such measures, the Azerbaijani Government had demonstrated its approval and endorsement of R.S.’s conduct (para 117), but that these measures did not amount to their ‘acknowledgment’ and ‘adoption’ in the sense of Article 11 ARSIWA (para 118). “[A]pplying the very high threshold set by Article 11 of the Draft Articles” (para 118), the Court could not attribute R.S.’s conduct to Azerbaijan, and, hence, was “unable to conclude that there has been a violation by Azerbaijan of the substantive limb of Article 2 of the Convention” (para 120).
The Court is correct in pointing out that the ILC had suggested a high threshold for attribution in the context of Article 11 ARSIWA. However, the ILC does not cite much practice that convincingly points to the existence of a rule which requires ‘acknowledgment’ or ‘adoption’ rather than just ‘approval’ or ‘endorsement’ for the operation of attribution of an individual’s conduct to the State (see also Frouville, p. 274). In fact, the only two cases cited by the ILC in its Commentary to Article 11 ARSIWA use the rather different terms ‘approval’ and ‘endorsement’ instead of ‘acknowledgment’ or ‘adoption’. In the Lighthouses arbitration (1956), an international arbitral tribunal attributed a particular act to Greece on the ground that it had been “endorsed by [Greece] as if it had been a regular transaction” (emphasis added). And in the famous Hostages Case (1980), the International Court of Justice held that “[t]he approval given to [the occupation of the US Embassy and the detention of its diplomatic and consular staff as hostages] 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” (emphasis added). Accordingly, at the time of the adoption, Article 11 ARSIWA may have amounted to progressive development of international law. However, it is not unlikely that the high threshold may now crystallize as a norm of customary international law, having been explicitly endorsed by the European Court of Human Rights. It is recalled in this respect that decisions of international courts concerning the existence and content of rules of customary international law, while not constituting primary evidence for the determination of such rules, are at least a subsidiary means to this effect.
Azerbaijan’s procedural obligations under Article 2: the Court’s assessment of presidential pardon?
The procedural limb under Article 2 predominantly raises issues of investigation and prosecution. The present case is a rather uncommon one since the Azeri courts and prosecution had nothing to do with the investigation, prosecution or conviction of R.S. Instead, the Court was asked to assess whether “actions following R.S.’s return to Azerbaijan …, in particular, in relation to the enforcement of his prison sentence imposed in another country” (para 159) violated the procedural limb of Article 2.
The Court decided on these matters by assessing the (i) reasons for releasing and (ii) the justification for reinstatement of benefits of R.S. (para 165).
Firstly, Azerbaijan tried to justify its presidential pardon and the release of R.S. by arguing, among other things, that Hungary did not take into account the personal circumstances and the mental status of R.S., and Hungary failed to communicate with R.S. in the language that he understood (paras 166-168). The core reason for releasing appears to be that Hungary failed to provide a fair trial to R.S. The Court refuted practically all arguments advanced by Azerbaijan and held that if “R.S. considered his trial unfair, he could have lodged an application under Article 6 with the Court against Hungary …, but he failed to do so” (para 167). The Court’s assessment of the reasons for releasing practically amounted to reviewing the reasons for pardoning R.S. It is clear that R.S. was released because he was pardoned. While the Court did not rule that the pardon itself in the case of R.S. is incompatible with Article 2 (the argument proposed by Judge Albuquerque), in practice it refuted the reasons for and the effects of pardoning. Without pronouncing it, the Court appears to have conducted a form of judicial review of the presidential pardon. Its assessment, rather uncommon for the Court, mirrors that of some national higher courts which examine presidential pardons on grounds of bona fide and justiciability.
Secondly, as regards the justification for reinstatement of benefits, the Court found that Azerbaijan had failed to provide any legal basis or explanation as to why R.S. had been granted salary arrears for the period spent in prison, a flat in Baku and a promotion in military rank awarded at a public ceremony (para 169). In that light, the Court ruled that “R.S. was treated as an innocent or wrongfully convicted person and bestowed with benefits that appear not to have had any legal basis under domestic law” (para 170).
The Court persuasively found that “the acts of Azerbaijan in effect granted R.S. impunity for the crimes committed against his Armenian victims. This is not compatible with Azerbaijan’s obligation under Article 2 to effectively deter the commission of offences against the lives of individuals” (para 172). Indeed, ruling otherwise could have given a green light to Azerbaijan and other states to seek transfer of perpetrators and pardon them immediately thereafter (see para 162). This could have a detrimental effect on the enforcement of judgments.
Hungary’s procedural obligations under Article 2
The core issue in relation to Hungary’s alleged violations of its procedural obligations under Article 2 ECHR was whether it “knew or ought to have known that there was a likelihood that R.S. might be released if transferred to Azerbaijan and that therefore they should have requested specific diplomatic assurances that this would not be the case” (para 193).
The Court found no procedural violation of Article 2 and held that Hungary had observed the procedure for transfer of R.S. as set out in the Council of Europe Convention on the Transfer of Sentenced Persons (Transfer Convention). It also found that the assurances received by Azerbaijan had not suggested that R.S. would be released. This latter issue is rather controversial, for at least two reasons, which Judge Albuquerque explains in his partly dissenting opinion.
Firstly, even the Court itself accepted that the letter of assurance by Azerbaijan “was admittedly incomplete and worded in general – which in turn could have aroused suspicion as to the manner of the execution of R.S.’s prison sentence” (para 196). In this vein, Hungary relied on “unreliable assurances” (para 191) as the letter did not specify how Azerbaijan would deal with R.S. upon his transfer but rather what general procedure would be followed in cases of transfer. According to the Hungarian Commission for Fundamental Rights, the Hungarian decision was not “sufficiently prudent when it did not require any guarantee from Azerbaijan for not granting – or not without knowledge of Hungary – the … [pardon] provided by article 12 of the [Transfer] Convention” (para 21, partly dissenting opinion). One may submit that the Court, by admitting that clear assurances were not necessary, accepted a rather low threshold of due diligence by Hungary.
Secondly, the finding of the Court on whether Hungary knew of the likelihood of pardoning R.S. upon his transfer omits important information revealed by prime minister Viktor Orban. Shortly after the release of R.S. by Azerbaijan, Orban stated in a press conference that the Hungarian “foreign ministry had forecast precisely what types of consequences this … decision may have. Nothing happened after our decision that we would not have reckoned with in advance” (para 20, dissenting opinion). It appears that the Court did not rely on this statement because neither of the parties had brought it to its attention. The Court clearly stated that it decided this aspect based on the evidence provided by the parties (para 196). However, according to Judge Albuquerque, the majority of the judges should not have ignored this notorious fact. In his view, the European Court of Human Rights and other international courts “used widely known and publicly available facts for the purpose of obtaining a realistic view of the facts beyond the case file” (para 20, dissenting opinion). Indeed, even if the Court refused to consider this as primary evidence, it could have used as a corollary material when it assessed the issue of due diligence and diplomatic assurances.
If the Court had found Hungary in breach of the procedural limb of Article 2 ECHR, it would not necessarily have equated the wrongdoing by Hungary with that by Azerbaijan. Clearly, the mala fide acts of Azerbaijan are graver than Hungary’s lack of due diligence. Furthermore, one cannot rule out that Azerbaijan would have pardoned R.S. even if it had provided precise diplomatic assurances to Hungary that it would not do so. However, from the standpoint of the development of the legal standards, and based on the facts of the case, the failure of the Court to find a breach by Hungary for its lack of due diligence and reliance on imprecise diplomatic assurances will cast a longer shadow.
In Makuchyan and Minasyan, the European Court of Human Rights has not just applied the law to the facts before it, but further developed the law itself. These developments are not self-evident and may invite criticism. However, given the Court’s authority, in any event they will be influential, both in the ECHR area and beyond. In this post, we have highlighted three relevant legal developments that can be gleaned from the judgment. First, the Court has confirmed the strict interpretation of the standard of ‘acknowledgment’ and ‘adoption’, thereby entrenching the attribution rule laid down in Article 11 ARSIWA, as interpreted by the ILC. In so doing, it has further developed the law of State responsibility. Second, the Court has judicially reviewed a presidential pardon, taking its cue from review decisions of higher courts in domestic jurisdictions. This type of review has enlarged the scope of procedural obligations under the right to life provision of Article 2 ECHR. Third, also in respect of the procedural limb of Article 2 ECHR, the Court has implied that clear diplomatic assurances in the context of transfer of prisoners are not required. The relatively low due diligence standard which it has adopted in this regard, may have a sizable impact on future prisoner transfer decisions.
Admittedly, the Court’s decisions on these three issues may, formally speaking, only concern obligations of ECHR Contracting Parties. However, as noted in the literature, even while developing its jurisprudence for the protection of human rights in an ECHR context, the European Court of Human Rights plays a leading role in interpreting and developing international human rights standards as well as public international law norms. In Makuchyan and Minasyan, it is obvious that the Court’s interpretation of Article 11 ARSIWA, which lays down a standard of general international law, will echo beyond the ECHR area. However, also its interpretation of the procedural limb of Article 2 ECHR may well affect the interpretation of non-ECHR States’ procedural obligations under international human rights law, in particular Article 6 of the International Covenant on Civil and Political Rights, which protects the right to life at the universal level.
Cedric Ryngaert is Professor of Public International Law and Head of the Department of International and European Law at Utrecht University.
Kushtrim Istrefi is Assistant Professor of Human Rights Law and Public International Law with SIM at Utrecht University. Authors are members of the Ucall research programme.