MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-6

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-6 Makuchyan and Minasyan v. Azerbaijan (Application No. 17247/13) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2023)431, CM/Del/Dec(2024)1492/H46-3

 

Application	Case	Judgment of	Final on	Indicator for the classification
17247/13	MAKUCHYAN AND MINASYAN	26/05/2020	12/10/2020	Complex problem

Case description

The case concerns measures taken by the Azerbaijani authorities in connection with an Azerbaijani officer, R.S., convicted in Hungary of the murder and attempted murder of two Armenian officers when they were all attending a NATO event in Budapest in 2004. Having served over eight years of his prison term in Hungary, R.S. was transferred to Azerbaijan to continue serving his prison sentence. However, upon his return, he was released on the basis of a pardon by the Azerbaijani President, granted the use of a flat in Baku, salary arrears for the time he had spent in prison in Hungary and a promotion in military rank at a public ceremony, accompanied by strong support and approval from a number of Azerbaijani public figures and high-ranking officials (§ 158).

The Court held that these acts of Azerbaijan in effect granted R.S. impunity for the crimes committed against his Armenian victims, which was incompatible with Azerbaijan’s obligation under Article 2 to take effective action to deter the commission of offences against the lives of individuals (§ 172) (violation of Article 2 in its procedural limb).

The Court further held that the Azerbaijani authorities had failed to refute the overwhelming body of evidence submitted by the applicants indicating that the various measures leading to R.S.’s virtual impunity, coupled with the glorification of his extremely cruel hate crime, had a causal link to the Armenian ethnicity of his victims (§ 220) (violation of Article 14 taken in conjunction with Article 2).

Status of execution

Individual measures

On 5 April 2023, the authorities submitted an action plan (DH-DD(2023)431), the most relevant parts of which (on restitutio in integrum) are summarised below. At the outset, the authorities acknowledged the violation of the applicants’ rights.

Just satisfaction: the authorities noted that the applicants did not seek damages and the Court did not make any award in respect of pecuniary or non-pecuniary damages, only in respect of costs and expenses. They stated that they would make the necessary arrangements to promptly pay the just satisfaction awarded by the Court in respect of costs and expenses to the applicants’ United Kingdom-based lawyers.

Letters of appreciation regarding R.S.: the authorities noted that the Court (§ 217) had referred to a special page on the website of the Presidential Administration, labelled “Letters of appreciation regarding R.S.”. They submitted in this respect that the President himself had never posted anything on this subject and that there was no special webpage. However, there were some letters posted by the public in support of the pardon and release of R.S. on the website of the Presidential Administration and appropriate measures would be taken to remove them.

Presidential pardon: the authorities underlined that no procedure exists under national law to review the legality of or revoke pardons. They further submitted that the revocation of the presidential pardon and the return of R.S. to prison to serve the remainder of the sentence of life imprisonment imposed by the Hungarian courts would be contrary to the Constitution of Azerbaijan and would also violate the principle of legal certainty in breach of Article 4 of the Protocol No. 7 to the Convention. However, they stressed that the pardon did not have the effect of acquitting R.S. and that his conviction had not been expunged. They referred in this connection to the official statement of the Ministry of Justice and Presidential Administration dated 2012, noting that the acts of R.S. were not approved or justified.

Other benefits and advantages: the authorities submitted that revocation of the “benefits and advantages” conferred on R.S. was not allowed under domestic law.

The Committee examined this case at its 1492^nd meeting (March 2024) (DH). It noted with concern that, although the Court’s judgment became final in October 2020, no individual measures had yet been taken. It noted further with regret that the authorities had not complied with their unconditional obligation to pay the costs and expenses and urged them to pay the relevant sums in full. It strongly insisted on the urgent need to remove the letters supporting the pardon and release of the perpetrator, posted on the website of the Presidential Administration. It recalled that according to the Court’s established case-law and the Council of Europe standards, the perpetrator should not remain eligible for holding public office, and called on the authorities to take measures to ensure that this principle is applied in the present case. The Committee noted the assessment of the authorities as regards the impossibility to revise or revoke the presidential pardon granted to the perpetrator, but also their acknowledgement of the violations and their clarification that the perpetrator’s convictions for murder and attempted murder were not affected by the pardon, as it exempted him from serving the remainder of his sentence. Recalling however that the pardon was only one of the elements which led to the violation found in this case, the Committee requested the authorities to clarify their position without further delay, as regards the “other benefits” provided to the perpetrator following his transfer from Hungary, which the Court considered to “appear not to have had any legal basis under domestic law”.

At the time of drafting of these Notes, no further information has been provided by the authorities.

General measures

In their action plan of April 2023 (DH-DD(2023)431), the authorities clearly affirmed that they would take all relevant measures to prevent repetition of similar violations.

Use of presidential pardons: the authorities underlined that pardoning has a significant positive influence in the penitentiary system and on society in the Republic of Azerbaijan. It is used as a supplementary instrument for convicted persons to redeem their social and legal standing and mitigate their situation. The positive behaviour and attitude of convicted persons is taken into account. Relevant factors are assessed by the Commission on Pardon Issues which works in close cooperation with the Presidential Administration of the Republic of Azerbaijan; before adopting a decree on a pardon, the opinion of the Commission is taken into account by the President. Between 2019 and 2022, 176 to 625 persons were pardoned each year in Azerbaijan.

Measures taken to combat racism and intolerance: the authorities referred to the visit of a delegation from the European Commission against Racism and Intolerance (ECRI) to Azerbaijan in June 2022 and the report which was adopted in 2023 with recommendations on measures to be taken to prevent and combat racism and intolerance in the country. They stated that promoting tolerance and non-discrimination has been identified as one of the new areas for co-operation based on the more recent work carried out by Council of Europe bodies and services in the Council of Europe’s Action Plan on Azerbaijan for 2022-2025. The authorities expressed their readiness to further co-operate with ECRI and other relevant Council of Europe bodies and to effectively implement their recommendations and raise awareness of tolerance and non-discrimination standards among public officials and public in general.

As a result of co-operation with the Council of Europe in the area of anti-discrimination within the framework of previous Action Plans, the Equality Platform was established, bringing together 13 civil society organisations, and aimed at strengthening the role of civil society in this area. A training course on European anti-discrimination standards has also permitted improvement of relevant skills of the staff in the Ombudsperson’s Office. In 2020, the Law on Information, Informatisation and Protection of Information was amended with a view to prohibiting internet providers and individuals from distributing any information promoting violence, religious extremism or inciting hatred. Information with such content shall now be removed within eight hours. The Criminal Code provides the main remedy against hate speech (Article 283). The legislation in general, including the Constitution, Law on Guarantees of Gender (Men and Women) Equality, Labour Code, Civil Code, provide further guarantees against discrimination and effective legal remedies for victims. Complaints about discrimination may also be submitted to the President and Human Rights Commissioner (Ombudsperson) of Azerbaijan. In 2021, the Ombudsperson submitted to the Parliament draft amendments on the Constitutional Law to include her Office as the body responsible for protecting human rights and freedoms enshrined in the Constitution of the Republic of Azerbaijan and in the international treaties to which the Republic of Azerbaijan is a party. Once the amendments come into force, a separate section in the annual report will be dedicated to the work carried out in the field of combating discrimination. The Ombudsperson has also submitted draft amendments concerning the establishment of independent monitoring mechanism for the prevention of discrimination under the Ombudsperson`s Office. As of 2022, the draft amendments had already passed three readings at the Parliament.

Other measures: The judgment was translated and disseminated to the relevant authorities and further measures will be taken to prevent a similar violation in future.

At its examination of the case 1492^nd meeting (March 2024) (DH), the Committee noted the information provided by the authorities affirming that they will take all the relevant measures to prevent repetition of similar violations, and invited them to ensure that any act absolving persons from criminal punishment or granting impunity from prosecution are used in future with due consideration of the requirements of the Convention, in particular the obligation to counteract impunity for serious violations of human rights. Noting the information provided by the authorities about the guarantees under domestic law, as well as the legislative amendments envisaged, to prevent and combat ethnically-motivated hatred, the Committee invited the authorities to consider further legislative changes, in particular by including explicit reference to grounds of colour, language, citizenship and ethnic origin in all criminal law provisions aimed at combating racism and discrimination, and also measures to promote reconciliation with a view to eradicating hostility between Azerbaijani and Armenian people. It welcomed, in this context, the authorities’ co-operation with the relevant Council of Europe bodies including ECRI, as well as their intention to implement the recommendations made by ECRI in its report on Azerbaijan. It further encouraged the authorities to make full use of the assistance of the Council of Europe co-operation programmes in the implementation of this judgment.

At the time of drafting of these Notes, no further information has been provided by the authorities.

Communications under Rules 8 and 9

Rule 8

On 5 March 2024, the authorities of Armenia submitted a communication under Rule 8.2a, in which they made clear that, from their perspective, the information provided by Azerbaijan revealed that neither individual nor general measures had been adopted. They suggested that in Azerbaijani law there are avenues to revoke the presidential pardon (more specifically, an application from the Prosecutor General to the Constitutional Court for the revision of the Presidential Decree). They also submitted that torturing and murdering ethnic Armenians is not considered a crime in Azerbaijan, and that such crimes are instead officially encouraged and glorified, and that the impunity of the perpetrator in this case paved the way for other similar crimes which had taken place subsequently. Armenia expected that the seriousness of the situation from the human rights perspective would be properly acknowledged and assessed by the Committee.

Rule 9

The applicants’ representative and several NGOs have submitted communications under Rule 9. They are presented in detail in the Notes for the 1492^nd meeting (March 2024) (DH).

They notably suggested that the most appropriate form of redress would be the revocation or, alternatively, review of R.S.’s pardon, which would be consistent with the European Court’s jurisprudence, international law and the Constitution of Azerbaijan. In more recent communications, the applicants’ representative insisted on the revocation of the pardon and other benefits. She noted that the authorities’ statement that the pardon did not expunge R.S. from his crime contradicted his treatment, bearing in mind all the benefits he received upon his return to Azerbaijan. Other communications also called for the payment of the costs and expenses.

Communications also called for measures to prevent the incitement and promotion of ethnic hatred against Armenians, including on social media and in public rhetoric, as well as in educational institutions. Measures should also be taken to ensure that perpetrators of ill treatment and violence against Armenians are not afforded impunity but that incidents are properly investigated and sanctioned.

In their response, the authorities recalled that the responsibility for execution of a case lies on the State concerned and that they remain free to choose the means to implement the judgment. They underlined that the preservation and development of the historical traditions of tolerance and strengthening of mutual understanding and dialogue between ethnic minorities and religious faiths in the country are among the government’s priorities. They contested the examples provided by the NGOs of anti-Armenian rhetoric and submitted that the alleged incidents of anti-Armenian hate crime were investigated and are pending the assessment of the European Court of Human Rights. As a diverse, multiethnic country, Azerbaijan is dedicated to upholding the core values of tolerance and non-discrimination, and does not condone statements or actions that promote hatred or violence targeting Armenians as a national or ethnic group. The response also recalled the messages conveyed by the President and high-level officials, consistently underlining the wish for reconciliation.

Analysis of the Secretariat

It is regrettable that no information on the outstanding issues was provided by the authorities in time for this meeting.

Individual measures

More than four years since the judgment became final, the Committee has still not received information confirming the adoption of any individual measure, including the payment of just satisfaction. This is a source of great concern.

Just satisfaction: despite the authorities’ assurances in 2023 that they would make the necessary arrangements to pay the costs and expenses, no confirmation of payment was received. The Committee may wish to urge the authorities to pay just satisfaction without further delay.

Letters of appreciation: although the Committee has insisted on the urgent need to remove the impugned letters from the Presidential Administration’s website and despite the authorities’ previous assurances to that effect, at the time of drafting of these Notes, the letters were still publicly available on the website. The Committee may wish to reiterate its invitation to urgently remove them.

Removal from public office: as underlined by the Committee, R.S. should not remain eligible for holding public office. The Committee may wish to firmly reiterate its call on the authorities in this respect.

Presidential pardon and “other benefits”: it is recalled that the Court established that the ex officio pardoning of R.S., followed by his immediate release, and the additional benefits provided to him, constituted, individually and cumulatively, the subsequent “approval” and “endorsement” of R.S.’s acts by various institutions and the highest officials of the State” (§ 115). While at the last examination of this case, the Committee noted the authorities’ indications on the impossibility to revise or revoke the presidential pardon, and that R.S.’s convictions were not affected by the pardon, it also asked the authorities to clarify their position without further delay as regards the revocation of “other benefits” (such as the back-dated salary and the grant of the use of an apartment in Baku), which, according to the Court, appeared not to have had any legal basis under domestic law (§ 170). The Committee might wish to reiterate this call.

General measures

As a start, it is important to recall that the authorities clearly affirmed in their action plan that they will take all the relevant measures to prevent repetition of similar violations. However, no further development was reported since the last examination of this case.

Concerning the violation of Article 2 of the Convention, the Committee may, once again, invite the authorities to ensure that any act absolving persons from criminal punishment or granting them immunity from prosecution are used in future with due consideration of the requirements of the Convention, in particular bearing in mind the obligation to counteract impunity for serious violations of human rights. For the same reason, it may wish to insist on assurances that anyone convicted of a serious offence is disqualified from holding public office.

Concerning the violation of Article 14 of the Convention (in particular the Court’s findings that the various measures leading to R.S.’s virtual impunity, coupled with the glorification of his extremely cruel hate crime, had a causal link to the Armenian ethnicity of his victims), while recalling the information provided by Azerbaijan on measures in place or envisaged to prevent and combat ethnically-motivated hatred as well as its continuing cooperation notably with ECRI, it remains of great importance to consider additional measures. The Committee may wish to reiterate that further legislative changes should be considered in line with the indications given by the Committee in March 2024, as well as measures to promote reconciliation with a view to eradicating hostility between Azerbaijani and Armenian people. It may encourage again the authorities to make full use of the assistance of the Council of Europe co-operation programmes in the implementation of this judgment.

The relevance of such measures appears to be confirmed notably by the June 2024 Concluding observations[1] from the UN Committee against Torture (CAT), which recommended Azerbaijan to “publicly condemn, at the highest levels, hate speech, threats and attacks against persons of Armenian national or ethnic origin and all other minority groups and refrain from endorsing, through action or omission, such threats and attacks by ensuring their prompt, thorough and effective investigation, whoever the perpetrator may be, including any alleged discriminatory motives that may provoke such actions, guaranteeing that those responsible are tried and punished in accordance with the gravity of their acts”. The September 2022 Concluding observations on Azerbaijan from the UN Committee on the Elimination of Racial Discrimination (CERD)^[2] also remain relevant in this respect; they notably recommended the authorities to explicitly criminalise racist hate speech and hate crimes and to include all grounds of discrimination, and to raise public awareness of the importance of ethnic and cultural diversity and the fight against racial discrimination.

Proposals for further action

As no individual measures have been taken for four years, the Committee could instruct the Secretariat to prepare a draft interim resolution for consideration at their next examination of the case, at their
1531^st meeting (June 2025) (DH), in the event that no tangible progress is achieved in the individual measures by then. 

Financing assured: YES