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Makuchyan and Minasyan v Azerbaijan and Hungary: Novel Questions of State Responsibility, Presidential Pardon, and Due Diligence of Sentencing Transfer Meet in a Rare Case of the Right to Life

In: European Convention on Human Rights Law Review
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Kushtrim Istrefi Assistant Professor of Human Rights Law and Public International Law, Netherlands Institute of Human Rights, Utrecht University (Ucall Research Programme), Utrecht, Netherlands, k.istrefi@uu.nl

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Cedric Ryngaert Professor of Public International Law, Utrecht University (Ucall Research Programme), Utrecht, Netherlands, c.m.j.ryngaert@uu.nl

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Judgment: European Court of Human Rights, Makuchyan and Minasyan v Azerbaijan and Hungary 17247/13 (ECtHR, 26 May 2020) Judgment (Merits and Just Satisfaction).

Section of the Court: Chamber (Fourth Section).

Applicable Convention Rights: Article 2 echr – violation of procedural obligations by Azerbaijan, no violation of substantive obligations by Azerbaijan, and no violation of procedural obligations by Hungary. Article 14 echr and Article 2 echr – violation by Azerbaijan. Article 38 – no violation by Azerbaijan or Hungary.

Primary Legal Issues: Did Azerbaijan acknowledge and adopt the conduct of R.S. in question as its own, and does that violate substantive obligations under Article 2 echr; Did Azerbaijan violate the procedural limb of Article 2 by pardoning and releasing R.S. following his transfer from Hungary to Azerbaijan to serve the prison sentence; Did Hungary violate the procedural limb of Article 2 because of failing to secure specific diplomatic assurances that Azerbaijan will not release R.S. upon his transfer.

Link to Case: <http://hudoc.echr.coe.int/eng?i=001-202524>.

1 Introduction

In 2004, two Armenian and two Azerbaijani soldiers participated in an English language course organised within the framework of the nato-sponsored ‘Partnership for Peace’ programme in Budapest (Hungary). In the early morning of 19 February 2004, an Azerbaijani soldier, R.S., went into the room of an Armenian soldier, G.M., and killed him while he was sleeping. R.S. ‘then tried to break down the door of the’ room of the other Armenian soldier in an attempt to kill him before being‘stopped by the police who had meanwhile arrived at the scene’.1 When first questioned about the motives, the perpetrator ‘said that he strongly disliked Armenians because he had lost relatives in the Nagorno-Karabakh conflict’.2 In 2006, the Hungarian courts sentenced R.S. to life imprisonment for committing ‘the exceptionally cruel and premeditated murder of G.M. and of preparation for murder of the …[second Armenian soldier]’.3 This was a serious hate crime case.

In 2012, Azerbaijan formally requested Hungary to transfer R.S. to his home country to serve the rest of his sentence. However, upon his arrival in Azerbaijan, R.S. was released based on a pardon given by the president of Azerbaijan. He was further promoted in the army and his salaries since 2004 were reinstated. R.S. was appreciated and glorified as a national hero for what he had done in Budapest.

The surviving Armenian soldier from the Budapest incident, Mr Makuchyan, and a relative of the deceased, Mr Minasyan, filed a complaint before the European Court of Human Rights (ECtHR, or the Court).4 They raised, among other things, three core legal issues. First, they complained that the acts of R.S. were attributable to Azerbaijan on the ground that the latter acknowledged and adopted them. This question primarily called for an assessment of the attribution of conduct based on the international law rules on state responsibility. Second, they claimed that Azerbaijan had violated its procedural obligations under Article 2 echr for pardoning and releasing R.S.. This question is related to the Court’s ability to review a presidential pardon. Third, in their view, Hungary violated the procedural limb of Article 2 echr by agreeing to transfer R.S. to Azerbaijan without securing prior specific diplomatic assurances. In this context, the Court had to clarify the requirements of due diligence in sentencing transfer cases.

On 26 May 2020, the ECtHR rendered a chamber judgment in Makuchyan and Minasyan v Azerbaijan and Hungary, and found a violation with regard to the second complaint only.

In what follows, we critically examine the findings of the Court in relation to these three core questions.5 We examine them in the same structural order. The conclusions zoom out and discuss the potential impact of the present judgment on the development of international law regarding state responsibility, as well as echr law regarding the judicial review of presidential pardon and due diligence in sentencing transfer cases.

We do not address in detail the issue of jurisdiction, i.e., the extraterritorial application of the echr. This is primarily so because the ECtHR addressed the issue only in passing. As to Azerbaijan’s substantive obligations under Article 2 echr, the ECtHR ruled that the question of jurisdiction was ‘interlinked with the substance of the applicants’ allegations’,6 in particular the question of whether the relevant conduct could be attributed to Azerbaijan under the law of state responsibility. As the answer to that question was in the negative, the ECtHR felt no need to engage in a tricky jurisdictional analysis.7 As to Azerbaijan’s procedural obligations under Article 2 echr, the ECtHR held that ‘there are “special features” that triggered the existence of Azerbaijan’s jurisdictional link’, namely R.S.’s transfer to Azerbaijan with a view to continuing his prison sentence there – without however explaining why this qualified as a ‘special feature’.8 It is recalled that this ‘special features’ jurisdictional criterion in relation to procedural obligations was first advanced by the ECtHR in Güzelyurtlu. However, in that case the ECtHR failed to give further guidance on what qualifies as a special feature, preferring a case-by-case determination instead.9 That being said, as regards procedural obligations in the specific context of armed conflicts, in Hanan v Germany, the ECtHR recently articulated that a sending state’s exclusive jurisdiction over its troops deployed abroad, as well as its duty to investigate potential war crime violations under international humanitarian law and domestic law were ‘special features’ triggering a ‘jurisdictional link for the purposes of Article 1 of the Convention in relation to the procedural obligation to investigate under Article 2’.10

2 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 International Law Commission’s (ilc) attribution rules under the law of state responsibility, in particular Article 11 of the Articles on the Responsibility of States for Internationally Wrongful Acts (arsiwa).11 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. It is of note that the conduct of R.S., a military service-member after all, could not be directly attributed to Azerbaijan under the doctrine of organic attribution (Article 4 arsiwa), as he had committed the relevant acts in a private capacity, not when exercising legislative, executive, judicial or other governmental functions.

The Court was of the view that, by taking the impugned measures, the Azerbaijani Government had demonstrated its approval and endorsement of R.S.’s conduct,12 but that these measures did not amount to their ‘acknowledgment’ and ‘adoption’ in the sense of Article 11 arsiwa.13 According to the Court, ‘those measures can be interpreted not so much as the State’s “acknowledgment” and “adoption” of R.S.’s criminal acts, as such, but rather as having the purpose of publicly addressing, recognising, and remedying R.S.’s adverse personal, professional, and financial situation, which the authorities of Azerbaijan perceived, unjustifiably in the Court’s view, as being the consequence of the allegedly flawed criminal proceedings in Hungary’.14 ‘[A]pplying the very high threshold set by Article 11 of the Draft Articles’,15 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’.16

In this section, we explain that Article 11 arsiwa is not often invoked. As a result, the Court’s application of Article 11 arsiwa has major precedential value. Tracing the origins of the rule, we demonstrate that in the past a lower threshold for attribution may have been used. However, we argue that a higher threshold, as advanced by the ilc and as applied by the Court, is called for in order to prevent private conduct from being too easily attributed to states.

The attribution rule laid down in Article 11 arsiwa is rarely invoked. The Court itself admits as much when it states that ‘the case-law on this particular issue is scarce’.17 The Court even points out that ‘further developments may therefore be expected in this area’.18 In so doing, it echoed its statement in Jones v United Kingdom (2014) that ‘further developments can be expected’ in respect of a ‘special rule of exception [pertaining to functional immunity] in public international law in cases concerning civil claims for torture lodged against foreign State officials’.19 Regardless, the Court is of the view that its assessment ‘must be limited to the existing rules of international law, as elaborated in the ilc Commentary and applied by international tribunals’.20

Precisely because the case law on Article 11 arsiwa is scarce, and, moreover, ambiguous, what the ‘existing rules of international law’ are, is, however, not exactly clear. In a sometimes rather facile way, law-applying agencies may view the ilc Articles as reflecting customary international law, without properly inquiring whether the existence of the relevant norms is evidenced by a general practice considered as law. Specifically, regarding Article 11 arsiwa, it is striking that the ilc does not cite much practice that convincingly points to the existence of a rule which requires ‘acknowledgment’ or ‘adoption’ for the operation of attribution of an individual’s conduct to the state.

In fact, the only two cases cited by the ilc in its Commentary to Article 11 arsiwa use the terms ‘approval’ and ‘endorsement’, which are rather different to ‘acknowledgment’ or ‘adoption’. In the Lighthouses arbitration (1956), an 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’.21 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’.22 As regards the latter case, the ilc opined that ‘[t]hese [acts] were sufficient in the context of that case, [but that] as a general matter, conduct will not be attributable to a State under article 11 where a State merely acknowledges the factual existence of conduct or expresses its verbal approval of it’.23 However, the ilc does not proffer any evidence of the existence of such a strict standard, beyond the vague statement that ‘[i]n international controversies, States often take positions which amount to “approval” or “endorsement” of conduct in some general sense but do not involve any assumption of responsibility’.24

It is also conspicuous that, in its Commentary, the ilc does not cite practice which uses a patently lower threshold, arguably even lower than the one used in the Lighthouses and Hostages cases. The award by the British-Colombian Mixed Commission in the Cotesworth and Powell case (1875), is a case in point:

One nation is not responsible to another for the acts of its individual citizens, except when it approves or ratifies them. It then becomes a public concern, and the injured party may consider the nation itself the real author of the injury. And this approval, it is apprehended, need not be in express terms; but may fairly be inferred from a refusal to provide means of reparation when such means are possible; or from its pardon of the offender when such pardon necessarily deprives the injured party of all redress.25

Special rapporteur Ago clearly disliked the low threshold suggested by the Commission in Cotesworth and Powell. This dislike also found its way into the ilc Commentary to Article 11 arsiwa, which, as Frouville has pointed out, affirmed ‘the contrast between approval-tolerance and approval-endorsement’.26 In the ilc’s view, only the latter would lead to attribution of conduct to the state. At the same time, however, as Frouville notes, ‘there is a difference in degree [between both modalities of approval] that is not always easy to grasp’, which makes him wonder how ‘adoption and simple approval [should] be distinguished in practice’.27 Frouville also observes that ‘[t]he commentaries of the ilc lack concrete illustrations in this regard to enlighten the reader’.28

It bears notice that the aforementioned Cotesworth and Powell case bears a striking resemblance to Makuchyan and Minasyan, as both concerned the pardon of an offender. This was not lost on Judge Pinto de Albuquerque, who in a partly dissenting opinion cited that case as evidencing that ‘[u]nder international law, it has long been admitted that the approval by the State of contentious private conduct may be inferred from the pardoning of the offender “when such pardon necessarily deprives the injured party of all redress”’.29 Applying this rule, Judge Pinto de Albuquerque was of the view that ‘Azerbaijan has actively taken steps to pardon and annul any punishment, compensate R.S. and indeed elevate his position to the pinnacle of a national hero, forms a “reality of the situation” which to my mind cannot but be seen as a State’s endorsement through acknowledgement and adoption of the individual’s conduct as its own’, leading to attribution of the conduct to the state.30

Judge Pinto de Albuquerque’s individual opinion highlights the semantic instability of the concept of ‘acknowledgement and adoption’, already raised by Frouville. This instability has not disappeared after the adoption of the arsiwa in 2001. Moreover, after 2001, practice has remained extremely scarce and ambiguous:31 the ECtHR was only able to identify two decisions of international tribunals which referred to Article 11 arsiwa,32 none of which clarified the required intensity of the relevant threshold. In the Bosnian Genocide case (2007), the International Court of Justice (icj) held that ‘the Respondent has not acknowledged and adopted the conduct of the perpetrators of the acts of genocide as its own (Art. 11)’.33 However, apparently it did so merely on a prima facie basis, without offering any further justification of why the criteria of Article 11 were not satisfied in that case. In the Nikolić case (2002), the International Criminal Tribunal for the former Yugoslavia (icty) engaged at more length with Article 11 arsiwa, when ascertaining whether the multinational military force sfor ‘acknowledged and adopted’ conduct undertaken by some individuals ‘as its own’, eventually deciding that it did not.34 However, this case does not as such clarify the standard of Article 11 arsiwa for purposes of the law of state responsibility, as it was concerned with attribution to a multinational force in the context of a defence motion challenging the jurisdiction of the icty. The icty admitted as much, where it held that ‘[p]urely as general legal guidance, it will use the principles laid down in the Draft Articles insofar as they may be helpful for determining the issue at hand’.35 But even if the case were directly relevant for the law of state responsibility, it is doubtful whether the icty laid down a very strict threshold for ‘acknowledged and adopted’ conduct. In fact, the icty equates ‘acknowledgement and adoption’ with ‘collusion or official involvement’,36 and on that basis excluded attribution in the case because sfor was ‘a mere passive beneficiary’.37 This appears to be a low rather than a high threshold. In fact, applying the Nikolić standard to the facts of Makuchyan and Minasyan may precisely lead to attribution of the individual’s conduct to Azerbaijan, unlike what the ECtHR avers. Indeed, as Judge Pinto de Albuquerque submits, the Azerbaijani authorities were not ‘“mere beneficiaries” of the fortuitous rendition of R.S., but instead sought this rendition by all political and legal means and even promoted the rendered person to the rank of national hero’. On this basis, Judge Pinto concluded that Azerbaijan ‘behaved in a manner from which … acknowledgement and adoption can be inferred’.38

We can conclude that the Bosnian Genocide and Nikolić cases do not provide much support for the relatively strict ‘approval-endorsement’ standard of attribution suggested by the ilc and applied by the ECtHR in Makuchyan and Minasyan. However, there is a decision of an international investment tribunal, which was not cited by the ECtHR, which does support the strict standard, and may thus qualify as relevant practice in favour of limiting attribution to acts of approval-endorsement.39 In Saint-Gobain Performance Plastics Europe v Bolivarian Republic of Venezuela, an international arbitral tribunal established under the icsid Convention, relying on the ilc Commentary to Article 11 arsiwa, held as follows: ‘In contrast to cases of mere State support, endorsement or general acknowledgment of a factual situation created by private individuals, attribution under this rule requires that the State clearly and unequivocally “identifies the conduct in question and makes it its own”’.40 It appears that the ECtHR has endorsed this very same threshold in Makuchyan and Minasyan, without apparently being aware of the investment tribunal’s earlier decision.

Both the ECtHR and the investment tribunal’s decisions may contribute to the further crystallisation of a customary norm that requires a high threshold for attribution under Article 11 arsiwa. While these decisions do not as such constitute relevant state practice, it is recalled that decisions of international courts concerning the existence and content of rules of customary international law are a subsidiary means for the determination of such rules.41

From a normative perspective, a high threshold may in fact be called for ‘to recognize the autonomy of persons acting on their own account and not at the instigation of a public authority’, as the ilc held at the time.42 Therefore, as a matter of principle, ‘the conduct of private persons is not as such attributable to the State’.43 Lowering the threshold for attribution may have the unwelcome consequence that states may more readily intervene in the private realm – and accordingly limit private autonomy – with a view to preventing individual conduct from giving rise to state responsibility. This risk of totalitarianism, in which the state exercises strict control over both public and private life,44 may arguably trump concerns over the lack of accountability which may flow from the application of a high attribution standard under Article 11 arsiwa.

Finally, it is of note that the ECtHR aligned its decision on attribution with general international law. It did not refer to the special nature of human rights as an argument to carve out an exceptional attribution regime, specifically designed for human rights. From the perspective of the unity of international law, the ECtHR’s wish to avoid fragmentation of international law is certainly to be welcomed.

3 Azerbaijan’s Procedural Obligations Under Article 2: Pardon Me, But You Cannot Pardon

This is an unusual case of Azerbaijan’s procedural obligations under Article 2 since its institutions had not been involved in any stage of the investigation, prosecution or conviction of R.S.. The alleged violation of Article 2 related only to the state’s ‘actions following R.S.’s return to Azerbaijan’,45 namely his release through a presidential pardon.

According to the applicants, R.S. had been pardoned for ‘overtly political reasons … to lessen the consequences of a serious criminal act’.46 They argued that the circumstances related to the release of R.S. sent a signal that Azerbaijan was not willing to prevent and suppress such serious offences. By reference to international law instruments, the applicants submitted that such pardons were ‘a form of denial of justice under international law’.47 Armenia, as a third-party intervener, maintained that the presidential pardon of R.S. ‘hindered the enforcement of the sentence imposed by the Hungarian courts and the administration of justice’.48

Azerbaijan tried to justify its presidential pardon and the release of R.S. by arguing, among other things, that Hungary had not taken into account the personal circumstances and the mental status of R.S., and had failed to communicate with him in the language that he understood.49 It thus emerges that the claimed failure on part of Hungary to ensure a fair trial to R.S. was the core argument for his release.

The Court, however, did not accept this argument. It ruled for the applicants 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’.50 As regards the reinstatement of benefits, it 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.51 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’.52

The Court concluded that ‘Azerbaijan in effect granted R.S. impunity for the crimes committed… [and that such actions were] not compatible with … [its] obligation under Article 2 to effectively deter the commission of offences against the lives of individuals’.53

The arguments of the Azeri government were contradictory. For example, they argued that R.S. suffered from a serious mental condition and, yet, upon his return, they had promoted him to a higher rank to serve in the military.54 The Court did not have a difficult task in questioning the Government’s reasons for the release and reinstatement of benefits of R.S..

However, the case is more complex than it appears because it concerned a presidential pardon. Hence, the core question was whether the ECtHR could review a presidential pardon in terms of the state’s procedural obligations under the right to life. The Court acted as though it was assessing the reasons for ‘release’ in clinical isolation, when in reality it reviewed the reasons for pardon. There was no dispute that R.S. had been released as a result of the pardon. The Court, without expressly stating it, thus carried out a form of judicial review of the presidential pardon. Its de facto assessment of the reasons for the pardon mirrored the assessment applied by some higher national courts, empowered to control presidential pardons, as to whether they are, inter alia, ‘irrational, discriminatory, or mala fide’.55

It is possible that the Court deliberately avoided formulating the issue before it as the one of review of a presidential pardon as this would require it answering a principal question of whether pardons were as such permissible under Article 2. In the past, the Court has only ruled on the incompatibility of pardons related to the prohibition of torture. The Court found in Abdülsamet Yaman v Turkey and confirmed in Okkali v Turkey ‘that, when an agent of the State is accused of crimes that violate Article 3, … the granting of an amnesty or pardon should not be permissible’.56

In relation to Article 2, however, the Court has gone only as far as saying that ‘the granting of an amnesty or pardon can scarcely serve the purpose of an adequate punishment’.57 Yet, it could not take the next step and say that they are impermissible, just like those related to Article 3. This appears to be the reason why in the present case the Court recalled that ‘pardon could scarcely be said to serve the purpose of an adequate punishment’58 but did not find it possible, as yet, to say that they are in breach of Article 2 echr.

Judge Pinto de Albuquerque in his concurring opinion stated that the Court should have found the pardon to be in breach of international law. In particular, he considered that the way in which Azerbaijan had pardoned R.S. was incompatible with the Council of Europe Convention on the Transfer of Sentenced Persons (Transfer Convention).59 He recalled that the Parliamentary Assembly of Council of Europe had already held that Azerbaijan had acted in bad faith and violated the principle of rule of law when it had granted pardon to R.S..60 However, the Court may only rule on a violation of the Convention, not of another international treaty. As regards a more principled question of permissibility or otherwise of pardons under Article 2, the opinion of Judge Pinto de Albuquerque is not conclusive either. While he claimed that the pardon at issue was incompatible with an external source, he admitted that ‘pardon for serious crimes, including murder, is not prohibited under international law’.61

It appears that, instead, the Court decided to follow a practical route for condemning the reasons for the release of R.S. on mala fide grounds. It this vein, it avoided entangling itself on the question of permissibility or otherwise of pardons, which is a rather difficult one to handle. From the point of view of justiciability, the Court did not let go that the pardon not only cancelled a sentence imposed by a foreign court but also de facto aimed to exonerate R.S. of any form of guilt. Indeed, deciding otherwise could have given Azerbaijan and other states a green light to seek transfer of perpetrators and pardon them immediately thereafter.62 This could have a detrimental effect on the enforcement of judgments.

Yet, on a more principled level, the Court has once again demonstrated that it is unsure of how to deal with pardons in the context of the right to life.63 The Court has thus far hinted that Article 2 pardons may not serve well the idea of a criminal punishment. Yet, it has not found them to be incompatible with the Convention in general terms. It remains to be seen how the present case will influence the Court’s approach to similar cases in the future given that the Court, albeit silently, in effect decided that a pardon is incompatible with Article 2 if it is unreasonable, discriminatory, or mala fide. Perhaps in the future cases it will have to formulate this standard explicitly. Certainly, this will not be an easy task given the difficulties associated with judicial review of pardons at the national level, let alone at the regional level, as well as international law’s tolerance of pardons in cases not involving international crimes.64

4 Hungary’s Procedural Obligations Under Article 2: Whither Due Diligence?

According to the applicants, Hungary was under a positive obligation ‘to ensure that R.S. would continue to serve his prison sentence even after he left Hungary’.65 They submitted that Hungary was responsible for having transferred R.S. without having first secured binding and specific diplomatic assurances from Azerbaijan,66 and that they ‘knew or ought to have known that there was a likelihood that R.S. might be released if transferred to Azerbaijan’.67 The core question here was one of due diligence.

Hungary argued that the Transfer Convention did not require it to obtain any assurances in case of transfer requests, and they ‘had not known (and could not have known) that there was a probability of R.S.’s release following his transfer’.68 Furthermore, in an exchange with Azerbaijani Government ‘the latter … [stated] that it would continue with the enforcement of the sentence without any “conversion” or new proceedings being instituted’.69 Hence, Hungary ‘had had every reason to believe that Azerbaijan [as a party to the Council of Europe and Transfer Convention] would act in line with its international obligations’.70

The Court found no procedural violation of Article 2 on part of Hungary, which had observed the procedure for the transfer of R.S. in its entirety.71 It ruled that based on the exchange that Hungary had had with Azerbaijan regarding the transfer of R.S., ‘no tangible evidence has been adduced before the Court … to show that the Hungarian authorities unequivocally were or should have been aware that R.S. would be released upon his return to Azerbaijan’.72

We find the reasoning of the Court unpersuasive for two reasons. First, even the Court itself accepted that the letter of Azerbaijani authorities ‘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’.73 Hence, the Court appears to suggest that Hungary could rely on ‘unreliable assurances’,74 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 his 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’.75 One may submit that the Court, by admitting that clear assurances were not necessary, accepted a rather low threshold of due diligence on part of Hungary.

Secondly, the finding of the Court on whether or not Hungary knew of the likelihood of pardoning R.S. upon his transfer omits important information that Hungary appears to have had about the possibility of release of R.S. by Azerbaijan. Judge Pinto de Albuquerque in his partly dissenting opinion cites an important statement made by prime minister Viktor Orban in this regard. 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’.76 It appears that the Court did not consider 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.77 However, Judge Pinto de Albuquerque rightly argued that the majority of the judges should not have ignored this notorious fact. In his view, the ECtHR 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’.78 Indeed, even if the Court refused to consider this as primary evidence, it could have used it when assessing the issue of due diligence and diplomatic assurances.

The crux of the problem is that the Court did not sufficiently engage with the realistic possibility of R.S.’s release upon his transfer and the need for more due diligence on the side of Hungary. This was not an ordinary case so as to tolerate a low threshold of due diligence. There was overwhelming evidence indicating that the authorities of Azerbaijan considered that R.S. had been convicted wrongfully. The Court referred to 27 strong statements made by Azerbaijan officials noting that R.S. is a hero, a role model, and should be released.79 Even the Ombudsperson of Azerbaijan stated that ‘R.S. should become an exemplary model of patriotism for the Azerbaijani youth’.80 Hence, the Court should have been more careful in assessing due diligence in the light of the circumstances of the case.

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 specific diplomatic assurances to Hungary that it would not do so. However, from the standpoint of legal standards, and given the facts of the case, the failure of the Court to find a breach by Hungary for its lack of due diligence casts a shadow on the overall outcome of the case.

5 Conclusions

In Makuchyan and Minasyan, the Court for the first time had to take a stance on Article 11 arsiwa, presidential pardon in relation to the right to life not involving a core international crime, and due diligence requirements related to sentencing transfer cases.

To address these three rather novel questions, the Court had little case law to follow. As a result, the Court not only had to apply but also clarify and potentially develop international and echr law in relation to these legal standards. 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 ruled on the incompatibility of the reasons for presidential pardon with procedural obligations under the right to life. The future case law on this matter will show whether Makuchyan and Minasyan was an incidental judgment or a building block to establish a principled position that condemns pardons that are prima facie mala fide. Third, also in respect of the procedural limb of Article 2 echr, the Court has implied that clear and specific diplomatic assurances in the context of transfer of prisoners are not required. On this last point, the relatively low due diligence standard which it has adopted may have a sizable impact on future prisoner transfer decisions.

The relevance of the Court’s reasoning in Makuchyan and Minasyan transcends the Convention system. Its interpretation of Article 11 arsiwa, which lays down a standard of general international law, may impact the way in which other courts and tribunals will deal with the question of attribution of conduct acknowledged and adopted by a state as its own. Likewise, the Court’s engagement with presidential pardon and due diligence may well influence other regional and international human rights bodies in interpreting the right to life.

1

Makuchyan and Minasyan v Azerbaijan and Hungary 17247/13 (ECtHR, 26 May 2020) para 9.

2

Ibid.

3

Ibid para 15.

4

Mr Minasyan died in 2013. His widow and their two children stated that they would like Mr Minasyan’s case to proceed. See, Makuchyan and Minasyan (n 1) para 1.

5

This contribution builds upon the authors’ earlier blog post. See, C Ryngaert and K Istrefi, ‘An Azeri Kills an Armenian Soldier at a nato Training in Budapest: the ECtHR Decides a Rare Case of State Responsibility and Presidential Pardon’ (Strasbourg Observers, 29 June 2020): <https://strasbourgobservers.com/2020/06/29/an-azeri-kills-an-armenian-soldier-at-a-nato-training-in-budapest-the-ecthr-decides-a-rare-case-of-state-responsibility-and-presidential-pardon/>.

6

See, Makuchyan and Minasyan (n 1) para 52.

7

Ibid para 120 (‘even assuming that Azerbaijan might be considered as having jurisdiction over R.S.’s actions in the particular circumstances of the present case, the Court is unable to conclude that there has been a violation by Azerbaijan of the substantive limb of Article 2 of the Convention’).

8

See, ibid paras 49–51. For criticism of this, see also, M Milanović and T Papić, ‘Makuchyan and Minasyan v. Azerbaijan and Hungary’ (2021) 115 American Journal of International Law 294, 297–298.

9

Güzelyurtlu and Others v Turkey 36925/07 (ECtHR, 29 January 2019) para 190.

10

Hanan v Germany 4871/16 (ECtHR, 16 February 2021) para 142.

11

ilc, ‘Responsibility of States for Internationally Wrongful Acts’ (2001) UN Doc A/56/49(Vol. I)/Corr.4.

12

See, Makuchyan and Minasyan (n 1) para 117.

13

Ibid para 118.

14

Ibid.

15

Ibid.

16

Ibid.

17

Ibid para 114.

18

Ibid.

19

Jones and Others v United Kingdom 34356/06 and 40528/06 (ECtHR, 14 January 2014) para 213.

20

Makuchyan and Minasyan (n 1) para 114.

21

Affaire relative à la concession des phares de l’Empire ottoman (Grèce c France) (1956) xii riaa 155 (emphasis added).

22

Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) (Judgment) [1980] icj Rep, para 74 (emphasis added).

23

ilc, ‘Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’ (2001) UN Doc A/56/10, 53 (<http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf>).

24

Ibid.

25

Cotesworth and Powell (Great Britain v Colombia) (5 November 1875), as cited in ilc, ‘Documents of the Twenty-Fourth Session Including the Report of the Commission to the General Assembly’ (1972) ii Yearbook of the International Law Commission, para 77 (emphasis added).

26

O de Frouville, ‘Attribution of Conduct to the State: Private Individuals’, in The Law of International Responsibility, J Crawford et al. (eds), (Oxford University Press 2010) 274.

27

Ibid.

28

Ibid.

29

Makuchyan and Minasyan (n 1) Partly Dissenting Opinion of Judge Pinto de Albuquerque, para 11.

30

Ibid para 19.

31

According to Milanović and Papić, Makuchyan and Minasyan ‘represents the most important jurisprudential application of the rule codified in Article 11 since the icj in Tehran Hostages’ [1980]. See, Milanović and Papić (n 8) 299.

32

Makuchyan and Minasyan (n 1) paras 36–37.

33

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] icj Rep 43, para 414.

34

Prosecutor v Dragan Nikolić (Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal) icty-94-2 (9 October 2002), para 64.

35

Ibid para 61 (original emphasis).

36

Ibid para 64.

37

Ibid para 66.

38

Makuchyan and Minasyan (n 1) Partly Dissenting Opinion of Judge Pinto de Albuquerque, para 10.

39

The authors are grateful to the peer reviewer for pointing this out in our earlier draft paper.

40

Saint-Gobain Performance Plastics Europe v Venezuela, icsid Case No. arb/12/13, Decision on Liability and the Principles of Quantum (30 December 2016) para 461. Article 11 arsiwa was also quoted in Unión Fenosa Gas, S.A. v Arab Republic of Egypt, icsid Case No. arb/14/4, Award (31 August 2018) paras 9.120–9.121.

41

ilc, ‘Draft Conclusions on Identification of Customary International Law, with Commentaries’ (2018) UN Doc A/73/10.

42

ilc (n 23) 38.

43

Ibid.

44

See, notably, H Arendt, The Origins of Totalitarianism (Schocken Books 1951).

45

Makuchyan and Minasyan (n 1) para 159.

46

Ibid paras 124–125.

47

Ibid paras 121 and 123.

48

Ibid para 142.

49

Ibid paras 135 and 166–168.

50

Ibid para 167.

51

Ibid para 169.

52

Ibid para 170.

53

Ibid para 172.

54

Ibid para 168.

55

A Novak, ‘Pardon Power’, (2015) in Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL] R Grote and others (eds.), (online edn) para 29. See also, A Perry, ‘Mercy and Judicial Review in the Commonwealth’ (International Journal of Constitutional Law Blog, 18 February 2015): <http://www.iconnectblog.com/2015/02/mercy-and-judicial-review-in-the-commonwealth/>.

56

Okkali v Turkey 52067/99 (ECtHR, 17 October 2006) para 76; Abdülsamet Yaman v Turkey 32446/96 (ECtHR, 2 November 2004) para 55.

57

Enukidze and Girgvliani v Georgia 25091/07 (ECtHR, 26 April 2011) para 274.

58

Makuchyan and Minasyan (n 1) para 157.

59

European Convention on the Transfer of Sentenced Persons (adopted 21 March 1983, entered into force 1 July 1985) ets No 112.

60

Makuchyan and Minasyan (n 1) Partly Dissenting Opinion of Judge Pinto de Albuquerque, para 15.

61

Ibid para 11.

62

See, ibid para 162.

63

M Jackson, ‘Amnesties in Strasbourg’ (2018) 38 Oxford Journal of Legal Studies 451. On page 463, he argued that ‘the Court is evidently unsure of how to deal with amnesties’. Jackson made the statement in relation to amnesties primarily related to Article 3 echr, where the Court’s position is at least more established as compared to Article 2.

64

Makuchyan and Minasyan (n 1) para 160.

65

Ibid para 193.

66

Ibid para 174

67

Ibid para 193.

68

Ibid para 186.

69

Ibid para 187.

70

Ibid para 186.

71

Ibid para 196.

72

Ibid.

73

Ibid.

74

Ibid para 191.

75

Makuchyan and Minasyan (n 1) Partly Dissenting Opinion of Judge Pinto de Albuquerque, para 21.

76

Ibid para 20.

77

Makuchyan and Minasyan (n 1) para 196.

78

Makuchyan and Minasyan (n 1) Partly Dissenting Opinion of Judge Pinto de Albuquerque, para 20.

79

Makuchyan and Minasyan (n 1) para 25.

80

Ibid.

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