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 LAWAzerbaijan

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 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. In 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. The language of ‘adoption’, on the other hand, carries with it the idea that the conduct is acknowledged by the State as, in effect, its own conduct. Indeed, provided the State’s intention to accept responsibility for otherwise non-attributable conduct is clearly indicated, article 11 may cover cases where a State has accepted responsibility for conduct of which it did not approve, which it had sought to prevent and which it deeply regretted. However such acceptance may be phrased in the particular case, the term ‘acknowledges and adopts’ in article 11 makes it clear that what is required is something more than a general acknowledgement of a factual situation, but rather that the State identifies the conduct in question and makes it its own.
... (8)  The phrase ‘if and to the extent that’ is intended to convey a number of ideas. First, the conduct of, in particular, private persons, groups or entities is not attributable to the State unless under some other article of chapter II or unless it has been acknowledged and adopted by the State. Secondly, a State might acknowledge and adopt conduct only to a certain extent. In other words, a State may elect to acknowledge and adopt only some of the conduct in question. Thirdly, the act of acknowledgment and adoption, whether it takes the form of words or conduct, must be clear and unequivocal. (9)  The conditions of acknowledgement and adoption are cumulative, as indicated by the word ‘and’. The order of the two conditions indicates the normal sequence of events in cases in which article 11 is relied on. Acknowledgement and adoption of conduct by a State might be express (as for example in the United States Diplomatic and Consular Staff in Tehran case), or it might be inferred from the conduct of the State in question.”
36. In the Case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro, Judgment of 27 February 2007, ICJ Reports 2007, p. 43), the International Court of Justice held as follows:
“414. Finally, the Court observes that none of the situations, other than those referred to in Articles 4 and 8 of the ILC’s Articles on State Responsibility, in which specific conduct may be attributed to a State, matches the circumstances of the present case in regard to the possibility of attributing the genocide at Srebrenica to the Respondent. The Court does not see itself required to decide at this stage whether the ILC’s Articles dealing with attribution, apart from Articles 4 and 8, express present customary international law, it being clear that none of them apply in this case. The acts constituting genocide were not committed by persons or entities which, while not being organs of the FRY, were empowered by it to exercise elements of the governmental authority (Art. 5), nor by organs placed at the Respondent’s disposal by another State (Art. 6), nor by persons in fact exercising elements of the governmental authority in the absence or default of the official authorities of the Respondent (Art. 9); finally, the Respondent has not acknowledged and adopted the conduct of the perpetrators of the acts of genocide as its own (Art. 11). 415. The Court concludes from the foregoing that the acts of those who committed genocide at Srebrenica cannot be attributed to the Respondent under the rules of international law of State responsibility: thus, the international responsibility of the Respondent is not engaged on this basis.”
37. In its Decision on defence motion challenging the jurisdiction of the Tribunal, issued on 9 October 2002 in Prosecutor v. Dragan Nikolić (Case No. IT-94-2), the International Criminal Tribunal for the former Yugoslavia held as follows:
“60. In determining the question as to whether the illegal conduct of the individuals can somehow be attributed to SFOR, the Trial Chamber refers to the principles laid down in the Draft Articles of the International Law Commission (‘ILC’) on the issue of ‘Responsibilities of States for Internationally Wrongful Acts’. These Draft Articles were adopted by the ILC at its fifty-third session in 2001. The Trial Chamber is however aware of the fact that any use of this source should be made with caution. The Draft Articles were prepared by the International Law Commission and are still subject to debate amongst States. They do not have the status of treaty law and are not binding on States. Furthermore, as can be deduced from its title, the Draft Articles are primarily directed at the responsibilities of States and not at those of international organisations or entities. As Draft Article 57 emphasises,
[t]hese articles are without prejudice to any question of the responsibility under international law of an international organization, or of any State for the conduct of an international organization. 61. In the present context, the focus should first be on the possible attribution of the acts of the unknown individuals to SFOR. As indicated in Article I of Annex 1-A to the Dayton Agreement, IFOR (SFOR) is a multinational military force. It ‘may be composed of ground, air and maritime units from NATO and non-NATO nations’ and ‘will operate under the authority and subject to the direction and political control of the North Atlantic Council.’ For the purposes of deciding upon the motions pending in the present case, the Chamber does not deem it necessary to determine the exact legal status of SFOR under international law. Purely 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.
... 64. The Trial Chamber observes that both Parties use the same and similar criteria of ‘acknowledgement’, ‘adoption’, ‘recognition’, ‘approval’ and ‘ratification’, as used by the ILC. The question is therefore whether on the basis of the assumed facts SFOR can be considered to have ‘acknowledged and adopted’ the conduct undertaken by the individuals ‘as its own’. It needs to be re-emphasised in this context that it cannot be deduced from the assumed facts that SFOR was in any way, directly or indirectly, involved in the actual apprehension of the accused in the FRY or in the transfer of the accused into the territory of Bosnia and Herzegovina . Nor has it in any way been argued or suggested that SFOR instructed, directed or controlled such acts. What can be concluded from the assumed facts is merely that the Accused was handed over to an SFOR unit after having been arrested in the FRY by unknown individuals and brought into the territory of Bosnia and Herzegovina. From the perspective of SFOR, the Accused had come into contact with SFOR in the execution of their assigned task. In accordance with their mandate and in light of Article 29 of the Statute and Rule 59 bis, they were obliged to inform the Prosecution and to hand him over to its representatives. From these facts, the Trial Chamber can readily conclude that there was no collusion or official involvement by SFOR in the alleged illegal acts.”
Council of Europe materials
38. The 1983 Council of Europe Convention on the Transfer of Sentenced Persons (ETS 112 – “the Transfer Convention”) was ratified by both Azerbaijan and Hungary, in 2001 and 1993, respectively. The relevant provisions of that treaty read as follows:
Preamble
“The member States of the Council of Europe and the other States, signatory hereto,
Considering that the aim of the Council of Europe is to achieve a greater unity between its members;
Desirous of further developing international co-operation in the field of criminal law;
Considering that such co-operation should further the ends of justice and the social rehabilitation of sentenced persons;
Considering that these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society; and
Considering that this aim can best be achieved by having them transferred to their own countries ...”
Article 2 – General principles
“1. The Parties undertake to afford each other the widest measure of co-operation in respect of the transfer of sentenced persons in accordance with the provisions of this Convention. 2. A person sentenced in the territory of a Party may be transferred to the territory of another Party, in accordance with the provisions of this Convention, in order to serve the sentence imposed on him. To that end, he may express his interest to the sentencing State or to the administering State in being transferred under this Convention.
...”
Article 6 – Supporting documents
“1. The administering State, if requested by the sentencing State, shall furnish it with:
(a) a document or statement indicating that the sentenced person is a national of that State;
(b) a copy of the relevant law of the administering State which provides that the acts or omissions on account of which the sentence has been imposed in the sentencing State constitute a criminal offence according to the law of the administering State, or would constitute a criminal offence if committed on its territory;
(c) a statement containing the information mentioned in Article 9.2.
...”
Article 9 – Effect of transfer for administering State
“1. The competent authorities of the administering State shall:
(a)  continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10, or
(b)  convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11. 2. The administering State, if requested, shall inform the sentencing State before the transfer of the sentenced person as to which of these procedures it will follow. 3. The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions.
...”
Article 10 – Continued enforcement
“1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State. 2. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.”
Article 11 – Conversion of sentence
“1. In the case of conversion of sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority:
(a)  shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing State;
(b)  may not convert a sanction involving deprivation of liberty to a pecuniary sanction;
(c)  shall deduct the full period of deprivation of liberty served by the sentenced person; and
(d)  shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed. 2. If the conversion procedure takes place after the transfer of the sentenced person, the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure.”
Article 12 – Pardon, amnesty, commutation
“Each Party may grant pardon, amnesty or commutation of the sentence in accordance with its Constitution or other laws.”
39. A declaration by the Azerbaijani Government in respect of Article 12 of the Convention on the Transfer of Sentenced Persons contained in the instrument of ratification submitted by the Azerbaijani Government reads as follows:
“In accordance with Article 12 of the Convention, the Republic of Azerbaijan declares that decisions regarding the pardons and amnesties of sentenced persons transferred by the Republic of Azerbaijan should be agreed with the relevant competent authorities of the Republic of Azerbaijan.”
40. Recommendation 1527 (2001) of the Parliamentary Assembly of the Council of Europe on the Operation of the Council of Europe Convention on the Transfer of Sentenced Persons – critical analysis and recommendations, in so far as relevant, reads as follows:
“1. The Council of Europe Convention on the Transfer of Sentenced Persons (ETS No. 112) provides for the transfer of foreign prisoners to their home countries, both for their own sake and because transfer enhances rehabilitation and reintegration into society, and consequently reduces recidivism. ... 9. For the reasons set out above, the Assembly recommends that the Committee of Ministers: ...
9.3.  draw up a new recommendation to member states on the interpretation and application of the Convention, with the following objectives:
...
b.  to state clearly that the Convention is not designed to be used for the immediate release of prisoners on return to their own country; ...”
41. Resolution 2022 (2014) of the Parliamentary Assembly of the Council of Europe on measures to prevent abusive use of the Convention on the Transfer of Sentenced Persons (ETS No. 112), in so far as relevant, reads as follows:
“1. The Convention on the Transfer of Sentenced Persons (ETS No. 112) provides for the transfer of foreign prisoners to their home countries. Its purpose is primarily humanitarian, to improve prospects of rehabilitation and reintegration of prison inmates into society.
... 3. The Assembly notes with concern that the Convention was invoked in order to justify the immediate release, upon transfer to Azerbaijan, of [R.S.], an Azerbaijani soldier convicted of murdering an Armenian fellow participant on a ‘Partnership for Peace’ training course in Hungary, sponsored by the North Atlantic Treaty Organization (NATO). Upon his arrival in Azerbaijan, he was welcomed as a national hero and granted an immediate pardon – long before the expiry of the minimum sentence set by the Hungarian court – and a retroactive promotion as well as other rewards. 4. While recognising that States Parties, by virtue of Article 12 of the Convention, have a sovereign right to grant pardons and amnesties to persons sentenced to a term of imprisonment, the Assembly recalls that the principle of good faith in international relations, recognised, inter alia, by the Vienna Convention on the Law of Treaties, and the principles of the rule of law require that treaties be interpreted in line with their objects and purposes. 5. The Assembly therefore:
5.1.  condemns the use of Article 12 of the Convention by Azerbaijan in the case of [R.S.] as a violation of the principles of good faith in international relations and of the rule of law;
5.2.  confirms its position, expressed in Recommendation 1527 (2001) on the operation of the Council of Europe Convention on the Transfer of Sentenced Persons – critical analysis and recommendations, that the Convention is not designed to be used for the immediate release of prisoners upon return to their home country;
5.3.  underscores the importance of applying the Convention in good faith and, in interpreting its provisions, adhering to the principles of the rule of law, in particular in transfer cases that might have political or diplomatic implications;
5.4.  recommends to States Parties to the Convention to make, where appropriate, ad hoc arrangements between a sentencing and an administering State in the form of an addendum to a transfer agreement under the Convention, which would spell out mutual expectations and provide for adequate assurances by the administering State.”
Relevant European Union materials
42. In its resolution of 13 September 2012 on Azerbaijan: the [R.S.] case (2012/2785(RSP)), the European Parliament held as follows:
“The European Parliament,
... A.  whereas [R.S.] had been jailed in a Hungarian prison since 2004 after brutally killing an Armenian colleague during a course sponsored by NATO’s Partnership for Peace Programme in Budapest; whereas [R.S.] had pleaded guilty and had expressed no remorse, defending his action on the grounds that the victim was Armenian;
B.  whereas on 31 August 2012 [R.S.], a lieutenant of the Azerbaijani armed forces who had been convicted of murder and sentenced to life imprisonment in Hungary, was transferred to Azerbaijan at the longstanding request of the Azerbaijani authorities;
C.  whereas immediately after [R.S.] was transferred to Azerbaijan the Azerbaijani President, Ilham Aliyev, pardoned him in line with the Constitution of the Republic of Azerbaijan and Article 12 of the Convention on the Transfer of Sentenced Persons;
D.  whereas Article 9 of the Convention on the Transfer of Sentenced Persons, to which Hungary and Azerbaijan are both signatory parties, states that a person sentenced in the territory of one state may be transferred to the territory of another in order to serve the sentence imposed on him or her, provided that the conditions laid down in that Convention are met;
E.  whereas the Deputy Minister of Justice of the Republic of Azerbaijan, Vilayat Zahirov, sent an official letter to the Ministry of Public Administration and Justice of Hungary on 15 August 2012, in which he stated that the execution of the decisions of foreign states’ courts regarding the transfer of sentenced persons to serve the remaining part of their prison sentences in the Republic of Azerbaijan were carried out in accordance with Article 9 (1) (a) of the Convention, without any conversion of their sentences; whereas he further gave an assurance that, according to the Criminal Code of the Republic of Azerbaijan, the punishment of a convict serving a life sentence could only be replaced by a court with a term of imprisonment for a specified period, and that the convict could be released on conditional parole only after serving at least 25 years of his or her prison sentence; and whereas the Azerbaijani authorities subsequently denied having given any diplomatic assurances to the Hungarian authorities;
F.  whereas [R.S.] received a glorious welcome in Azerbaijan and a few hours after his return was granted a presidential pardon, set free and promoted to the rank of major during a public ceremony;
G.  whereas the decision to set [R.S.] free triggered widespread international reactions of disapproval and condemnation;
... 1. Stresses the importance of the rule of law and of honouring commitments made;
2. Deplores the decision by the President of Azerbaijan to pardon [R.S.], a convicted murderer sentenced by the courts of a Member State of the European Union; regards that decision as a gesture which could contribute to further escalation of the tensions between two countries, and which is exacerbating feelings of injustice and deepening the divide between those countries, and is further concerned that this act is jeopardising all peaceful reconciliation processes within the societies concerned and may undermine the possible future development of peaceful people-to-people contact in the region;
3. Considers that, while the presidential pardon granted to [R.S.] complies with the letter of the Convention on the Transfer of Sentenced Persons, it runs contrary to the spirit of that international agreement, which was negotiated to allow the transfer of a person convicted on the territory of one state to serve the remainder of his or her sentence on the territory of another state;
4. Considers the presidential pardon granted to [R.S.] as a violation of the diplomatic assurances given to the Hungarian authorities in Azerbaijan’s request for transfer on the basis of on the Convention on the Transfer of Sentenced Persons;
5. Deplores the hero’s welcome accorded to [R.S.] in Azerbaijan and the decision to promote him to the rank of major and pay him eight years’ back salary upon his arrival, and is concerned about the example this sets for future generations and about the promotion and recognition he has received from the Azerbaijani state;
6. Takes the view that the frustration in Azerbaijan and Armenia over the lack of any substantial progress as regards the peace process in Nagorno-Karabakh does not justify either acts of revenge or futile provocations that add further tension to an already tense and fragile situation;
...”
THE LAW
PRELIMINARY ISSUESLocus standi

43. The second applicant died on 8 October 2013. His wife and children expressed the wish to continue the application on his behalf. 44. The respondent Governments did not submit any comments in this respect. 45. The Court observes that in various cases in which an applicant has died in the course of Convention proceedings it has taken into account statements from the applicant’s heirs or close family members expressing a wish to pursue the application (see, among other authorities, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014, and Bitiyeva and X v. Russia, nos. 57953/00 and 37392/03, § 92, 21 June 2007). The Court considers that the second applicant’s wife and children, who stated their intention of continuing the proceedings, have a legitimate interest in obtaining a finding that there was a breach of their relative’s rights under the Convention (see Igor Shevchenko v. Ukraine, no. 22737/04, § 36, 12 January 2012). 46. Accordingly, the Court finds that the second applicant’s heirs have standing to continue these proceedings. Compatibility ratione loci of the application
47. The Court observes at the outset that no objection was raised by the Azerbaijani Government as to the Court’s competence ratione loci in the present case. However, given that the case involves facts that took place in more than one country, the Court must examine this question of its own motion (see Aliyeva and Aliyev v. Azerbaijan, no. 35587/08, § 56, 31 July 2014). 48. The Court recently summarised – in Güzelyurtlu and Others v. Cyprus and Turkey ([GC], no. 36925/07, §§ 178-90, 29 January 2019) – its case-law regarding jurisdiction as follows:
“178.  ’Jurisdiction’ under Article 1 is a threshold criterion. ... As the Court has emphasised, from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial ...
... 181. To date, there have been very few cases in which the Court has had to examine complaints under the procedural limb of Article 2 where the death occurred under a different jurisdiction from that of the State in respect of which the procedural obligation is said to arise.
... 188. In the light of the above-mentioned case-law it appears that if the investigative or judicial authorities of a Contracting State institute their own criminal investigation or proceedings concerning a death which has occurred outside the jurisdiction of that State, by virtue of their domestic law ..., the institution of that investigation or those proceedings is sufficient to establish a jurisdictional link for the purposes of Article 1 between that State and the victim’s relatives who later bring proceedings before the Court ...
... 190. Where no investigation or proceedings have been instituted in a Contracting State, according to its domestic law, in respect of a death which has occurred outside its jurisdiction, the Court will have to determine whether a jurisdictional link can, in any event, be established for the procedural obligation imposed by Article 2 to come into effect in respect of that State. Although the procedural obligation under Article 2 will in principle only be triggered for the Contracting State under whose jurisdiction the deceased was to be found at the time of death, ‘special features’ in a given case will justify departure from this approach, according to the principles developed in Rantsev [v. Cyprus and Russia, no. 25965/04], §§ 243-44[, ECHR 2010 (extracts)]. However, the Court does not consider that it has to define in abstracto which ‘special features’ trigger the existence of a jurisdictional link in relation to the procedural obligation to investigate under Article 2, since these features will necessarily depend on the particular circumstances of each case and may vary considerably from one case to the other.”
49. In respect of the procedural limb of Article 2, the Court notes that both the crimes and the conviction of R.S. occurred in Hungary. However, Azerbaijan subsequently sought his transfer with a view to his continuing his prison sentence in his home country, in line with the Council of Europe’s Transfer Convention. 50. The Court reiterates in this connection that the enforcement of a sentence imposed in the context of the right to life must be regarded as an integral part of the State’s procedural obligation under Article 2 (see, mutatis mutandis, Kitanovska Stanojkovic and Others v. the former Yugoslav Republic of Macedonia, no. 2319/14, §§ 32-33, 13 October 2016). It therefore considers that, regardless of where the crimes were committed, in so far as Azerbaijan agreed to and assumed the obligation under the Transfer Convention to continue the enforcement of R.S.’s prison sentence commenced by the Hungarian authorities (see paragraph 48 above), it was bound to do so, in compliance with its procedural obligations under Article 2 of the Convention (see, mutatis mutandis, Aliyeva and Aliyev, cited above, § 56). 51. The Court is therefore satisfied that in the present case there are “special features” that triggered the existence of Azerbaijan’s jurisdictional link in relation to the procedural obligation under Article 2 (see Güzelyurtlu and Others, cited above, § 190). 52. As regards the complaint under the substantive limb of Article 2, as formulated by the applicants in the present case, the Court considers that the issue of jurisdiction – that is to say, whether the victims were under the control of R.S. and whether he acted as an Azerbaijani State agent at the time of the crimes – is interlinked with the substance of the applicants’ allegations and will be examined simultaneously with their complaint. The Azerbaijani Government’s objection of non-exhaustion of domestic remediesSubmissions by the parties

(a)   The Azerbaijani Government
53. The Azerbaijani Government submitted that the applicants had not exhausted domestic remedies, as they had failed to approach the Constitutional Court by lodging a request with the President, Parliament, the Cabinet of Ministers, the Supreme Court or the Prosecutor’s Office. The Azerbaijani Government accepted that the Court had previously held that a constitutional complaint lodged with the Constitutional Court did not amount to an ordinary and effective remedy that applicants were required to use for the purposes of Article 35 § 1 of the Convention (citing Islam-Ittihad Association and Others v. Azerbaijan, no. 5548/05, 13 November 2014), but argued that that decision should be revisited. While Sargsyan v. Azerbaijan ([GC], no. 40167/06, ECHR 2015) demonstrated the difficulties inherent in accessing remedies in the context of the Azerbaijan-Armenia conflict, the fact that recourse to the Constitutional Court existed as a viable option could not be ignored. (b)   The applicants
54. The applicants argued that there were no effective domestic remedies available to them, particularly given the evidence of official State engagement in, and support for, the Convention violations perpetrated in their case. The general background to the Nagorno-Karabakh conflict and the state of relations between Azerbaijan and Armenia were relevant, especially in the light of the fact that R.S., the first applicant and G.M. were military officers in their respective armies. 55. Under the Azerbaijani Constitution, an individual was only entitled to apply for some sort of review to the Constitutional Court directly in relation to “legal and normative acts by executive authorities”. The presidential order pardoning R.S. had not been a normative act but an individual act; therefore, they had no right to apply to the Constitutional Court. Thus, it was clear, in accordance with the Court’s well-established case-law, that an application to the Constitutional Court was not a remedy that was available to the applicants. 56. The Court had consistently found that, as regards Azerbaijan, applicants were not required to apply to the Constitutional Court as this was not considered to offer a form of redress that was adequately accessible, and it did not constitute an ordinary and effective remedy that applicants were required to use for the purpose of Article 35 § 1 of the Convention (the applicants cited Ismayilov v. Azerbaijan, no. 4439/04, §§ 37-40, 17 January 2008; Muradova v. Azerbaijan, no. 22684/05, § 86, 2 April 2009; and Islam-Ittihad Association and Others, cited above, § 34). In addition, the Azerbaijani Government had not produced any examples of a case in which an individual in any form of comparable situation had successfully used the Constitutional Court mechanism in the way that they had suggested. 57. Referring to Sargsyan (cited above, §§ 118-19), the applicants argued that Azerbaijan had failed to discharge the burden of proving the availability to the applicants of a remedy capable of providing redress in respect of their Convention complaints and offering reasonable prospects of success. (c)   The Armenian Government, third-party intervener
58. The Armenian Government also referred to Sargsyan (cited above) and argued that owing to the unresolved conflict in Nagorno-Karabakh, it was difficult for Armenian nationals to gain access to remedies in Azerbaijan. Nothing had changed since the Court’s judgment in Sargsyan, and Azerbaijan had failed to discharge the burden of proving the availability to the applicants of a remedy capable of providing redress in respect of their Convention complaints and offering reasonable prospects of success.

Outcome for Article 38: no_violation