EHRM, 26-05-2020, nr. 17247/13

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, the 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 (see 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.

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 the 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.

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.

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 (see 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 example 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.

Referring to Sargsyan (cited above, §§ 118–119), 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.

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.

The Azerbaijani Government maintained that the applicants had suffered no significant disadvantage. R.S. had spent over eight years in prison and the applicants had not been adversely affected and had not suffered any loss or injury due to the granting of the pardon. While they might feel aggrieved, that was not sufficient to constitute a significant disadvantage. No major issues regarding human rights arose in the present case; R.S. had been arrested, tried, convicted and punished. Whether a pardon granted by the President of Azerbaijan had been politically wise was not the issue. It had been legitimate under Azerbaijani law, had been granted for humanitarian reasons and was not in contravention of the terms of the Transfer Convention.

The applicants recalled that under the ‘significant disadvantage’ test the assessment of the ‘minimum threshold’ depended on the circumstances of the case. The Court took account of the nature of the right allegedly breached, the seriousness of the impact of the alleged violation on the exercise of the right and the potential consequences of the violation on the applicants' personal situation (Giusti v. Italy, no. 13175/03, §34, 18 October 2011, and Gagliano Giorgi v. Italy, no. 23563/07, §115, ECHR 2012 (extracts)).

Given the issues raised by the case as to the two respondent States' positive obligations under Article 2 — notably to ensure the proper implementation of R.S.'s sentence for murder and attempted murder — the applicants submitted that they had clearly suffered a significant disadvantage. As a result of his pardon, R.S. had served a substantially lesser sentence and, following his transfer, the applicants had seen R.S. glorified and accepted in Azerbaijan as a hero.

In any event, ‘respect for human rights’ would require an examination of the application on the merits, given its gravity, the new legal issues raised by the case, and the fact that the issue remained unacknowledged and unresolved in Azerbaijan and could therefore recur in future cases. Moreover, the Court was precluded from applying the ‘significant disadvantage’ criterion as there was no available domestic remedy and the case had accordingly not been ‘duly considered by a domestic tribunal’.

Finally, the applicants pointed out that under international law pardons and amnesties in circumstances where States had sought to avoid their obligation to take punitive measures had been considered a form of denial of justice.

Neither the Hungarian Government nor the Armenian Government submitted any argument in this regard.

The Court has emphasised on many occasions that Article 2 of the Convention may come into play even if a person whose right to life was allegedly breached did not die (see, among other authorities, Makaratzis cited above, § 55; and Fergec v. Croatia, no. 68516/14, §§ 21–24, 9 May 2017 and the cases cited therein). It is therefore essential to determine in the present case whether the first applicant's life was endangered as a result of the events complained of.

The Court has already applied Article 2 in certain cases where there was a serious risk of an ensuing death, even if the applicants were alive at the time of the application. For example, in Budayeva and Others the applicants' physical integrity was threatened as a result of a natural catastrophe. Although some of the applicants sustained no actual injury (see Budayeva and Others, cited above, § 146), the Court found Article 2 applicable to the circumstances of their case. Similarly, in Kolyadenko (cited above, §§ 153–156), the first, third and sixth applicants suffered no actual physical injury in a sudden flood in their homes. Having examined the circumstances of their case as a whole, the Court nonetheless concluded that their lives had been at imminent risk and that Article 2 was therefore applicable to their case.

The Court has also examined, on the merits, allegations made under Article 2 by persons claiming that their life was at risk, even though no such risk had yet materialised, when it was persuaded that there had been serious threat to their lives (see R.R. and Others v. Hungary, no. 19400/11, §§ 26–32, 4 December 2012, where the applicants complained of having been excluded from a witness protection programme; see also Selahattin Demirtaş v. Turkey, no. 15028/09, §§ 30–36, 23 June 2015, where the applicant complained that a newspaper article had put his life at risk).

In addition, the Court has also held that, although there was no State involvement in the death of an individual, the basic procedural requirements applied with equal force to the conduct of an investigation into a life-threatening attack on an individual, regardless of whether or not death had resulted (see Menson and Others v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V).

In the present case, pursuant to the facts as established by the Hungarian courts, after he had decapitated G.M., R.S. tried to break down the door of the first applicant's room with an axe, shouting threats to his life. Other persons present in the dormitory called the police, who ultimately stopped R.S. before he could actually realise his threats. While it is true that the first applicant did not sustain any actual bodily harm, the above-described circumstances clearly indicate that his life had been in serious and imminent danger. What is more, despite no actual injury, the Hungarian courts nonetheless sentenced R.S. for the ‘preparation of his murder’. In doing so, they too must have considered that he had been in a life-threatening situation, even though no actual injury had ensued.

In the Court's opinion, the above-mentioned circumstances leave no doubt as to the existence of an imminent risk to the life of the first applicant, which brings his complaint on that account within the scope of Article 2 of the Convention. The fact that he survived and sustained no injuries has no bearing on this conclusion.

Firstly, the applicants argued that Azerbaijan was directly responsible for the murder and attempted murder because both crimes had been committed by an Azerbaijani military officer. Secondly, the applicants argued that Azerbaijan had acknowledged and accepted that conduct as its own.

The assessment of a State's responsibility for acts perpetrated by State officials when ‘off duty’ required the Court to assess the ‘totality of the circumstances and consider the nature and circumstances of the conduct in question’ (see Sašo Gorgiev, cited above, § 48). The applicants referred to a number of previous cases where the Court had found lethal use of force by ‘off-duty’ State agents to be imputable to the State (see Gorovenky and Bugara v. Ukraine, nos. 36146/05 and 42418/05, 12 January 2012, and Sašo Gorgiev, cited above).

The applicants submitted that R.S. and his two victims had been in Budapest in order to attend a NATO-sponsored language training course as serving members of the armed forces of their respective States — in other words, clearly acting in the course of their respective official duties. R.S.'s position was therefore not the same as that of the perpetrators of the homicide in Enukidze and Girgvliani v. Georgia (no. 25091/07, 26 April 2011), who had been ‘off duty’ in that they had been attending a private birthday celebration.

Furthermore, there had been a serious failure of regulation comparable to, and indeed arguably more serious than, the shortcomings identified in the cases of Gorovenky and Bugara and Sašo Gorgiev (both cited above). The Azerbaijani Government submitted that R.S. had been suffering from a ‘temporary mental impairment or diminished responsibility or perhaps insanity’, and also stated that it was ‘clear that R.S. had been in a vulnerable situation and medically unwell’, and that he had been ‘emotionally disturbed’. The Azerbaijani authorities had not carried out any form of assessment of R.S.'s fitness to be recruited, or his continuing fitness to serve as a member of Azerbaijan's armed forces or to attend the NATO-sponsored training course. Nor was there any evidence that Azerbaijan had rigorous safeguards in place to vet members of its armed forces for their suitability to serve.

In addition to that general duty, there was a further and more specific obligation that arose in view of R.S.'s particular mental state. If the Azerbaijani Government had been aware that R.S. had been suffering from a mental impairment, there was nothing to suggest that it had not been a pre-existing condition, which should have been assessed and diagnosed before he had actually travelled to a three-month training course at which Armenian officers would also be present. It was, at least in part, a direct result of the Azerbaijani authorities' failure to assess R.S.'s capacity to withstand such a situation that had led to his vast over-reaction in the face of various ‘humiliations’ (as he perceived them) and his commission of a gruesome murder. The Azerbaijani Government had not submitted any medical documentation to the Court to establish the nature, gravity or history of R.S.'s alleged mental illness.

The applicants also referred to Article 11 of the International Law Commission's Articles on Responsibility of State for Internationally Wrongful Acts and pointed out that conduct could be attributed to a State where the State in question had acknowledged and adopted the conduct in question as its own. Such acknowledgment and adoption did not need to be expressed and could be inferred from the conduct of the State in question. In addition, where such acknowledgement and adoption was unequivocal and unqualified, there was good reason to give it retroactive effect.

The statements denying support and approval for the crimes committed by R.S. relied on by the Azerbaijani Government did not counteract the evidence showing that R.S. had been glorified and celebrated as a hero, not only by the Azerbaijani public, but by the Azerbaijani authorities. The applicants referred to statements in support of R.S. made by high-ranking Azerbaijani government officials, members of political parties and representatives of civil society (see paragraph 25 above). A special section had been set up on the webpage of the President of Azerbaijan labelled ‘Letters of Appreciation regarding [R.S.]’, where individuals could express their congratulations on his release and pardon. One man — a member of parliament, famous singer and artist — had described R.S. as a ‘hero’ who deserved his own statue.

The fact that R.S. had been welcomed in Azerbaijan as a hero was a matter of public knowledge and had been covered by the international media. On his return to Azerbaijan, the Ministry of Defence had promoted R.S. to the rank of major, awarded him a flat and given him the pay he had lost since his arrest in Hungary. That was corroborated by the European Commission against Racism and Intolerance in its June 2016 report on Azerbaijan. The applicants argued that the benefits granted to R.S. were those provided by the Code of Criminal Procedure of Azerbaijan in respect of acquitted or wrongfully prosecuted or arrested individuals; this demonstrated that Azerbaijan viewed R.S. as someone who had been unfairly convicted.

Finally, in support of their arguments the applicants referred to the International Court of Justice (‘the ICJ’) case of United States Diplomatic and Consular Staff in Teheran. In that case, the attribution of the acts of the militants in question to the Islamic State of Iran had come as a consequence of the failure of the Iranian authorities to protect the diplomatic and consular premises and personnel, combined with the obligation not to incite violence or provide public support for the acts of militants. By analogy, the applicants in the instant case argued that Azerbaijan had endorsed R.S.'s acts and had created an atmosphere of immunity by sending a clear message that the killing of an Armenian officer had been an act deserving of honours.

The Government of Azerbaijan denied that it had been responsible for the acts of R.S. Relying on Enukidze and Girgvliani (cited above), it argued that, while R.S. had been in Budapest in the course of his official duties, the nature of his crime had been so abusive and so remote from his official status that such serious criminal behaviour could not be attributable to Azerbaijan. The general rule set out by the International Law Commission in its 2011 Draft Articles on State Responsibility was that the only conduct attributed to a State at the international level was that of its organs or government, or of others who had ‘acted under the direction, instigation or control of those organs — i.e. as agents of the State’.

The Azerbaijani Government strongly denied the applicants' allegation that Azerbaijan had acknowledged and accepted the conduct of R.S. as its own. On the contrary, it had made clear that it did not approve of the criminal act but rather had been concerned by what it considered flaws in the conviction of R.S. and the length of his sentence in the light of the particular circumstances of his case. The Azerbaijani Government cited statements denying that R.S.'s actions had been approved or justified at an official level and that he had been neither glorified nor considered a hero in Azerbaijan (see paragraph 26 above).

The Government argued that R.S. had been verbally abused by the Armenian officers while in Budapest, which had precipitated a state of mind that had stemmed from his ‘difficult experiences in the past and tipped him over the edge’. However, there was nothing to suggest that he had been suffering from a pre-existing mental condition or illness that should have been diagnosed before he had travelled to Budapest.

Neither the Hungarian Government nor the Armenian Government submitted any argument in this regard.

The applicants claimed that Azerbaijan had violated its procedural obligations under Article 2 of the Convention. That aspect of the case related primarily to the duty of the State to establish and implement effective criminal-law provisions, supported by adequate law-enforcement machinery, to ensure the punishment of breaches of the right to life (see Enukidze and Girgvliani, cited above, § 241 and § 268, and Ali and Ayşe Duran v. Turkey, no. 42942/02, § 61, 8 April 2008). The applicants emphasised that the issues of deterrence and the prevention and suppression of offences were inextricably linked to the question of punishment, all of which were highly relevant to the case, given its very high profile, both nationally and internationally. Such a profile meant that the Azerbaijani authorities' failure to act in an appropriate way to ensure that others were deterred from committing similar offences had magnified the effects of the case. Justice had very obviously not been done, nor had it been seen to be done.

The Court had, in comparable circumstances, required national authorities to act with thoroughness, objectivity and integrity and to act in a way which commanded the trust of the next of kin and of the general public. Such attributes were absent in the applicants' case and, in addition, there had been a heightened obligation because of the involvement of a State agent and the need for deterrence (see Enukidze and Girgvliani, cited above; see also Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2 November 2004 in the context of the applicability of Article 13).

The applicants made reference to international judicial practice relating to pardons and amnesties, relying in particular on decisions and statements of the UN Human Rights Committee and the Inter-American Court and Commission of Human Rights. They also cited the 1933 case of Lettie Charlotte Denham and Frank Parlin Denham (U.S.) v. Panama, in which the United States-Panama General Claims Commission had taken the view that the sentence of eighteen years and four months imposed on a murderer had not been inadequate by international standards but that the subsequent reduction of that sentence by one third had given rise to international liability. In that case the Commission had held that ‘the failure of an individual criminal to serve an adequate term may give rise to an international liability even where the original sentence is adequate.’ Thus, in certain circumstances pardons and amnesties had been considered a form of denial of justice under international law.

The Azerbaijani Government appeared to be seeking to directly challenge some of the factual findings of the Hungarian courts and to raise various alleged procedural irregularities, as well as questioning the mental state of R.S. when he had committed the offences, and using those arguments to explain the circumstances leading to the pardon. The applicants submitted that the basis of the pardon was the Azerbaijani authorities' scepticism of, or at the very least their ambivalence towards, the conviction and sentence of R.S. handed down by the Hungarian court. It was clear that R.S. had been pardoned for overtly political reasons relating to the ongoing Nagorno-Karabakh conflict with Armenia. Such reasons should have no bearing whatsoever on the decisions made in the course of domestic criminal proceedings.

In subverting the Hungarian court's judgment and by acting in a way that had been motivated by political grounds entirely extraneous to the criminal justice process, the Azerbaijani Government had obviously failed to comply with their positive obligations under Article 2 of the Convention. To protect life and prevent impunity for life-endangering offences, in the present case, had required the Azerbaijani authorities to uphold and respect — and to be seen to uphold and respect — the Hungarian courts' conviction of and sentence imposed on R.S. The effect of the exercise of the President's discretion to issue a pardon had therefore been ‘to lessen the consequences of a serious criminal act … rather than to show that such acts could in no way be tolerated’ (see Ali and Ayşe Duran, cited above, § 68). Rather than being promoted and receiving other benefits, R.S. should have been dismissed from the military (see Abdülsamet Yaman, cited above, § 55). The ‘humanitarian reasons’ for the pardon given by the Azerbaijani Government had not been substantiated.

Accordingly, there had been a ‘manifest disproportion’ between the gravity of the act in question and the punishment that had been implemented (see Enukidze and Girgvliani, cited above, §§ 268–269), depriving the criminal prosecution of any remedial effect; as such, there had been a procedural violation of Article 2 of the Convention.

That conclusion was strengthened by the fact that, in pardoning R.S., the Azerbaijani Government had acted in breach of the Transfer Convention. While the Transfer Convention made reference to the possibility of prisoners being pardoned (Article 12), the Convention was explicit that the purpose of transferring prisoners was so that they could then serve in the administering State the sentences imposed on them by the sentencing State. Under the Vienna Convention on the Law of Treaties, any interpretation of the Transfer Convention ‘in good faith’ and ‘in the light of its object and purpose’ could only lead to the conclusion that it had been breached by the actions of the Azerbaijani Government in the case. Those arguments were supported and strengthened by many statements issued by governments and international agencies in response to the transfer of R.S. in August 2012.

The applicants also pointed out Azerbaijan's declaration in respect of the Transfer Convention (see paragraph 39 above) to the effect that any decisions in relation to pardons or amnesties concerning prisoners transferred by Azerbaijan would have to be agreed with the Azerbaijani authorities. To apply such a principle in the present case would have required the Azerbaijani authorities to have obtained the prior agreement of the Hungarian authorities to pardoning R.S., which they had not.

Furthermore, the pardon granted to R.S. was incompatible with the requirements of the Azerbaijani Criminal Code, which stated that if a convicted prisoner sentenced to life was pardoned, his sentence should be replaced by a term of imprisonment of not more than twenty-five years.

Finally, the applicants submitted that the measures taken by the Azerbaijani authorities with the effect of subverting his sentence had not been sufficiently prescribed by law. The authorities had furthermore failed to involve or consult the applicants in any way. Accordingly, the procedural breach of Article 2 had been compounded by the absence of adequate legal safeguards in respect of the pardon and the other benefits granted to R.S.

The Azerbaijani Government submitted that in pardoning R.S. they had acted in accordance with the Transfer Convention and that it would be odd for adherence to one European Convention to amount to a violation of another.

The present case did not concern an instance of a State granting a pardon to a person convicted of a crime within its own jurisdiction, such as in the cases of Enukidze and Girgvliani (cited above) and Nikolova and Velichkova v. Bulgaria (no. 7888/03, 20 December 2007), but rather a situation where a State had pardoned a State agent convicted in a foreign country in circumstances arguably giving rise to concern.

It was relevant that R.S. was an internally displaced person from the region of Azerbaijan which was currently under Armenian military occupation. He had been forced to leave his home at the age of 15 and had lost close relatives in the conflict. While those events did not justify murder, insufficient attention had been paid to his history and state of mind in the criminal proceedings.

Referring to the affidavit lodged by R.S.'s defence lawyer, the Azerbaijani Government argued that R.S. had been seriously abused both physically and verbally by the Armenian officers and that that situation had led to a state of mind that might be defined as temporary mental impairment or diminished responsibility, or perhaps insanity. It was clear that R.S. had been in a vulnerable situation and medically unwell. In his defence lawyer's opinion, the Hungarian courts had not taken that sufficiently into consideration. There were further concerns relating to the criminal proceedings as such. R.S. had been interrogated in Russian, a language in which he was not proficient, and he had not been provided with a lawyer during the first interrogation.

In raising those concerns, the Azerbaijani Government did not intend to impugn the decision of the Hungarian courts but rather to explain the circumstances which had led to the pardon. The presidential pardon had been granted, accordingly, in the spirit of humanitarian concerns for the history, plight and mental condition of R.S.

There had been no duty on Azerbaijan to carry out an effective investigation. In the circumstances of the case and in the light of the concerns about the trial, the sentence actually served by R.S. and his psychological state, it was difficult to point to ‘unreasonable leniency’, as set out in Enukidze and Girgvliani (cited above), where a pardon had been issued just two years after the conviction of the applicant in that case (in contrast to R.S., who had served eight and a half years in prison in Hungary).

The applicants' references to general practice under international law concerning amnesties and pardons were not relevant since they dealt with patterns of violations rather than a single instance committed by an individual. Contrary to the applicants' submissions, the text of the presidential pardon was in the public domain and freely available, and further details of the reasons for R.S.'s pardon and further measures taken following his transfer to Azerbaijan had been given in statements made by Azerbaijani officials.

As regards the question as to whether there had been a breach of the Transfer Convention, the Azerbaijani Government argued that under the Vienna Convention, it was only where the meaning of a text was ambiguous or obscure, or led to a manifestly absurd or unreasonable result, that recourse might be had to supplementary means of interpretation under Article 32. They furthermore referred to the advisory opinion of the ICJ in Competence of the General Assembly for the Admission of a State to the United Nations (1950 I.C.J. 5 (Mar. 3)) and argued that in interpreting and applying the provisions of a treaty, a tribunal must endeavour to give effect to them in ‘their natural and ordinary meaning’ in the context in which they occurred.

The focus of the Transfer Convention was to facilitate the transfer of foreign prisoners to their home country rather than to address the substantive issue of the length of the sentence to be served in the administering State. The Azerbaijani Government argued that the general principle set out in Article 2 of the Transfer Convention that a transfer was to be made ‘in order [for the transferee] to serve the sentence imposed on him’ was not supported by other substantive provisions in the Transfer Convention. Referring to Article 9 of the Transfer Convention, the Azerbaijani Government argued that there could be no question as to Azerbaijan's authority to take all appropriate decisions as regards the enforcement of the sentence. That position was reinforced by the text of Article 12, which suggested that the administering State had full competence as regards the granting of a pardon or the commutation of a sentence.

The Azerbaijani Government referred to the conclusion of the European Parliament that, even though the spirit of the Convention might have been infringed by the pardon, it had in fact complied with the letter of the Convention. In R (Michael Shields v Secretary of State for Justice), the High Court of England and Wales had held that the power of the executive to grant a pardon, pursuant to English law and Article 12 of the Transfer Convention, to a person convicted and sentenced in Bulgaria was not constrained by Article 13 of the ECHR.

As regards its declaration in respect of the Transfer Convention (see paragraph 39 above), the Azerbaijani Government argued that, despite its formal title of a ‘declaration’, it was open to determination whether that provision indeed constituted a declaration, or whether it in fact constituted a ‘reservation’ whereby Azerbaijan had sought to modify or exclude the legal effect of the provision in question, or whether it merely signalled a political attitude. It was worth noting that the said declaration was one of five such declarations made on the same date, alongside one (so entitled) ‘reservation’. Logic would suggest that Azerbaijan had distinguished between ‘declarations’ and ‘reservations’ and that the declaration in question had not in fact been intended as a reservation. In any event, the declaration was not applicable in the circumstances in question, as it referred to persons transferred by Azerbaijan and not those transferred to it. It was not reciprocal, since Hungary had not made any equivalent declaration or reservation; as such there was no need to seek the consent of Hungary to any pardon it might wish to make.

The Armenian Government argued that the Azerbaijan's presidential pardon of R.S. had hindered the enforcement of the sentence imposed by the Hungarian courts and the administration of justice.

The purpose of the Transfer Convention was to give an opportunity to a person deprived of his liberty to serve his sentence in his home country with a view to facilitating social rehabilitation and reducing difficulties such as language barriers, alienation from local culture and customs and absence of contact with relatives. Article 3 of the Transfer Convention stipulated that the Convention was applicable only if, at the time of receipt of the request for transfer, the sentenced person still had at least six months of the sentence to serve, or if the sentence was ‘indeterminate’. The Explanatory Report to the Transfer Convention stated that the Convention had been conceived as an instrument to further the offender's social rehabilitation, an aim which could only be usefully pursued where the length of the sentence to be served was sufficiently long. That principle demonstrated that the possibility of setting a sentenced person free immediately after a transfer had not been envisaged, as confirmed by the Parliamentary Assembly of the Council of Europe in its Resolution 1527 (2001).

Furthermore, in Resolution 2022 (2014) the Parliamentary Assembly had condemned the use of Article 12 of the Transfer Convention by Azerbaijan in respect of R.S. as ‘a violation of the principles of good faith in international relations and of the rule of law’. That resolution also underlined the importance of applying the Transfer Convention in good faith in cases that might have political or diplomatic implications.

Thus, the pardoning of R.S. had failed to meet the core purpose of the Transfer Convention.

The Explanatory Report to the Transfer Convention clarified that the obligation in Article 9 § 2 of the Transfer Convention had been imposed on the administering State because the information could have a bearing on the sentencing State's decision on whether or not to agree to a requested transfer. Where the administering State opted for continued enforcement, it was bound by the legal nature as well as the duration of the sentence, as determined by the sentencing State.

Azerbaijan had given assurances to the relevant Hungarian authorities stating that the sentence imposed by Hungary would be continued, rather than converted; they had thus been bound to ensure that R.S. served the sentenced imposed on him. The Armenian Government argued that Azerbaijan had given misleading and false assurances, in breach of international standards and obligations under the Transfer Convention.

The Armenian Government referred to statements made by high-ranking officials of Azerbaijan, including a statement made by the head of the Government's Foreign Relations Department that ‘to see our soldier here — a 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’ and argued that, contrary to the claims of the Azerbaijani Government, the pardoning and honouring of R.S. had been organised in advance by the authorities. He had been pardoned, promoted, offered an apartment and awarded salary arrears.

The international community had expressed great concern with regard to the process.

The Armenian Government furthermore argued that Azerbaijan had made a declaration in respect of the Transfer Convention that ‘decisions regarding pardons and amnesties of sentenced persons transferred by the Republic of Azerbaijan should be agreed with the relevant authorities of the Republic of Azerbaijan’. This demonstrated the emphasis given by the Azerbaijani Government to the importance of agreement in relation to pardons and amnesties granted to persons sentenced in its own courts, while totally disregarding the similar right of Hungary to be at least informed of its decision to grant a pardon to R.S. Referring to the Vienna Convention on the Law of Treaties, the Armenian Government submitted that the said declaration in fact constituted a reservation and that the principle of reciprocity could not be ruled out.

The Armenian Government furthermore argued that in granting R.S. a pardon Azerbaijan had violated not only international law, but also its own domestic legislation. Azerbaijan's domestic law only allowed for a life sentence to be reduced to twenty-five years' imprisonment. Furthermore, the question of granting a pardon to a person sentenced to life imprisonment could only be considered after the person had served ten years of his sentence.

Relying on Enukidze and Girgvliani (cited above), the Armenian Government argued that States should apply stricter rules when punishing their own agents for committing serious life-endangering crimes and that it was a State's duty to ‘combat the sense of impunity that offenders may consider themselves to enjoy by virtue of their very office and to maintain public confidence in, and respect for, the law-enforcement system.’

Lastly, a number of medical examinations had been carried out and the Hungarian courts had found R.S. to have been sane and of sound mind when he had committed the crimes at issue. In any event, it was open to R.S. to file an application to the Court as regards the fairness of the criminal proceedings in respect of him.

Having regard to its fundamental character, Article 2 of the Convention contains a procedural obligation to carry out an effective investigation into alleged breaches of its substantive limb (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 229, ECHR 2016; Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 169, 14 April 2015; and Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 298, ECHR 2011 (extracts)). The duty to conduct such an investigation arises in all cases of killing and other suspicious deaths, whether the perpetrators were private persons or State agents or are unknown (see Angelova and Iliev v. Bulgaria, no. 55523/00, § 93, ECHR 2007-IX, and Rantsev v. Cyprus and Russia, no. 25965/04, § 232, ECHR 2010 (extracts)).

The relevant principles applicable to the effective investigation have been summarised by the Court on many occasions as follows (see, for example, Armani Da Silva, cited above, §§ 229-39): those responsible for carrying out an investigation must be independent from those implicated in the events in question; the investigation must be ‘adequate’; its conclusions must be based on thorough, objective and impartial analysis of all relevant elements; it must be sufficiently accessible to the victim's family and open to public scrutiny; and it must be carried out promptly and with reasonable expedition. In order to be ‘adequate’ the investigation must be capable of leading to a determination of whether the force used was or was not justified in the circumstances and of identifying and — if appropriate — punishing those responsible (ibid., §§ 240, 243).

The requirements of Article 2 go beyond the stage of the official investigation and persist throughout proceedings in the national courts, which must as a whole satisfy the requirements of the positive obligation to protect lives through the law. While there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow life-endangering offences or grave attacks on physical and moral integrity to go unpunished (see Öneryıldız v. Turkey [GC], no. 48939/99, §§ 95–96, ECHR 2004-XII; Mojsiejew v. Poland, no. 11818/02, § 53, 24 March 2009; and Dimitrov and Others v. Bulgaria, no. 77938/11, § 142, 1 July 2014).

Lastly, the Court has already held that when an agent of the State is convicted of a crime that violates Article 2 or Article 3 of the Convention, the subsequent granting of an amnesty or pardon could scarcely be said to serve the purpose of an adequate punishment. On the contrary, States are to be all the more stringent when punishing their own agents for the commission of serious life-endangering crimes than they are with ordinary offenders, because what is at stake is not only the issue of the individual criminal-law liability of the perpetrators but also the State's duty to combat the sense of impunity the offenders may consider themselves to enjoy by virtue of their very office (see, mutatis mutandis, Enukidze and Girgvliani, cited above, § 274).

Turning to the present case, the Court notes that a large portion of the procedural obligation to effectively investigate loss of life in the present case — namely the criminal investigation and R.S.'s conviction — was carried out by Hungary. Having served over eight years of his prison term there, R.S. was transferred to Azerbaijan in order to continue serving his prison sentence in his home country. However, upon his return, R.S. was released on the basis of a pardon by the Azerbaijani President. This was followed by granting him a flat in Baku, salary arrears for the time he spent in prison in Hungary as well a promotion in military rank at a public ceremony (see paragraph 21 above) and accompanied by strong support and approval from a number of Azerbaijani public figures and high ranking officials (see paragraph 25 above).

What the Court is called upon to examine in the present case is whether and to what extent the Azerbaijani authorities' actions following R.S.'s return to Azerbaijan were in line with the above-mentioned principles arising from the Court's case-law on procedural obligations under Article 2, in particular, in relation to the enforcement of his prison sentence imposed in another country.

The Court observes at the outset that pardons and amnesties are primarily matters of member States' domestic law and are in principle not contrary to international law, save when relating to acts amounting to grave breaches of fundamental human rights (see Marguš v. Croatia [GC], no. 4455/10, § 139, ECHR 2014 (extracts)). Under Article 12 of the Transfer Convention, amnesties and pardons are allowed by either the sentencing or the administering State (see paragraph 38 above).

The Court stresses in this context that it does not have authority to review the Contracting Parties' compliance with instruments other than the European Convention on Human Rights and its Protocols; even if other international treaties may provide it with a source of inspiration it has no jurisdiction to interpret the provisions of such instruments (see Mihailov v. Bulgaria, no. 52367/99, § 33, 21 July 2005). It has no authority, therefore, to determine whether Azerbaijan has complied with its obligations under the Transfer Convention.

At the same time, the Court is not prevented from having regard to the Parliamentary Assembly of the Council of Europe's conclusion in 2001 concerning pardons and the Transfer Convention, according to which the latter was not designed to be used for the immediate release of prisoners upon their return to their own countries (see paragraph 40 above). Indeed, pursuant to the preamble to the Transfer Convention, its main aims are to promote justice and the social rehabilitation of sentenced persons. Moreover, in its 2014 resolution, the Parliamentary Assembly concluded that, by granting R.S. a pardon, Azerbaijan had violated the principle of good faith and the rule of law (see paragraph 41 above). Other international bodies have also deplored the treatment and glorification of R.S. upon his return to Azerbaijan (see paragraph 42 above).

Turning to the present case, the Court considers that from the point at which Azerbaijan assumed responsibility for the enforcement of R.S.'s prison sentence — that is to say, the moment of his transfer — it was called upon to provide an adequate response to a very serious ethnically-biased crime for which one of its citizens had been convicted in another country (see paragraph 15 above and paragraph 213 below). In the Court's opinion, in view of the extremely tense political situation between the two countries, the authorities should have been all the more cautious, given that the victims of the crimes in the present case were of Armenian origin (see in this sense the European Parliament's resolution cited at paragraph 42 above).

However, instead of continuing to enforce R.S.'s prison sentence — as stipulated in the letter from the Azerbaijani Government to the Hungarian Government that was sent during negotiations regarding R.S.'s transfer (see paragraph 19 above) — immediately upon his return, R.S. was set free.

As the main reason for R.S.'s immediate release, the Azerbaijani Government relied on ‘humanitarian concerns for the history, plight and mental condition of R.S.’. They also contested the fairness of the criminal proceedings conducted against him in Hungary. However, the Court is not convinced by any of these arguments.

First of all, in the absence of any proof other than an affidavit lodged by R.S.'s defence lawyer (see paragraph 13 above), it is difficult to seriously question the fairness of criminal proceedings conducted in another Council of Europe Member State. Indeed, R.S. was afforded a criminal trial in Hungary before courts at two judicial instances, which delivered well-reasoned decisions. In particular, the Hungarian courts explained that R.S. himself had initially asked for an interpreter from Hungarian into Russian and that — once he had complained about not understanding that language to the necessary degree — they had conducted an in-depth analysis of the disadvantage at which this may have put him in the proceedings against him. In the end, they concluded that it was proven that R.S. had a good command of Russian and that, in any event, at his request he had subsequently been provided with interpreters and translations of documents into his native language (see paragraph 15 above).

Furthermore, it is not clear about which rights R.S. was allegedly not informed during his criminal proceedings (see paragraph 13 above), since it can be seen from the first-instance judgment of the Budapest High Court that he had been afforded legal counsel from the time of his first interrogation on 19 February 2004 (see paragraph 11 above). In any event, there is insufficient evidence that any procedural omission — if indeed there had been one — was not subsequently offset by procedural safeguards or that such an omission rendered the entire proceedings against him unfair (see, mutatis mutandis, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 262, ECHR 2016). In any event, had R.S. considered his trial unfair, he could have lodged an application under Article 6 with the Court against Hungary once the criminal proceedings against him had come to an end, but he failed to do so.

The remaining reasons relied on by the Azerbaijani Government, such as the personal history and mental difficulties of R.S. — as understandable as they may be — could hardly be sufficient to justify the failure of the Azerbaijani authorities to enforce the punishment pronounced against one of their citizens for a serious hate crime committed abroad. In particular, the Court is satisfied that R.S.'s mental capacities had been thoroughly assessed during his trial in Hungary by a number of medical experts and that he was found to have been mentally able to understand the dangers and consequences of his actions at the time of the offences (see paragraph 15 above). The subsequent decision by the Azerbaijani authorities to promote R.S. to a higher military rank would clearly suggest that he was deemed fit to continue to serve in the military and therefore did not suffer from a serious mental condition.

Quite apart from his pardon, the Court is particularly struck by the fact that, in addition to immediate release, upon his return to Azerbaijan R.S. was granted a number of other benefits, such as salary arrears for the period spent in prison, a flat in Baku and a promotion in military rank awarded at a public ceremony. The Azerbaijani Government did not provide any explanation as to why R.S. had been granted those benefits, nor did they indicate the legal basis for such actions apart from citing the applicable regulation on military promotion (see paragraph 30 above). Indeed, at least the salary arrears appear not to have had a legal basis in the Code of Criminal Procedure, which allows for such a measure only in cases where an individual had been acquitted or wrongfully convicted (see paragraph 28 above).

In the Court's view, the foregoing — taken as a whole — indicates that R.S. was treated as an innocent or wrongfully convicted person and bestowed with benefits that appear not to have had any legal basis under domestic law.

The Court reiterates in this connection, as it has already held in similar cases, that, as a matter of principle, it would be wholly inappropriate and would send a wrong signal to the public if the perpetrator of very serious crimes such as those in the present case were to maintain his or her eligibility for holding public office in the future (see Türkmen v. Turkey, no. 43124/98, § 53, 19 December 2006; Abdülsamet Yaman, cited above, § 55; and Enukidze and Girgvliani, cited above, § 274). As already stated, in the present case not only did R.S. remain eligible for public office, but he was also promoted to a higher military rank in a public ceremony.

In view of the foregoing, the acts of Azerbaijan in effect granted R.S. impunity for the crimes committed against his Armenian victims. This is not compatible with Azerbaijan's obligation under Article 2 to effectively deter the commission of offences against the lives of individuals.

There has thus been a violation of Article 2 of the Convention by Azerbaijan under its procedural limb.

The applicants complained that Hungary had violated Article 2 of the Convention by granting the request for R.S.'s transfer without obtaining adequate binding assurances to the effect that he would be required to complete his prison sentence in Azerbaijan.

The applicants submitted that the Hungarian authorities had had a positive obligation to ensure respect for the applicants' right to life. The nature and extent of the positive obligations under Article 2 in the circumstances of the case set out in relation to Azerbaijan were equally applicable to Hungary. It was a Hungarian court which had convicted and sentenced R.S. and accordingly there had been a positive obligation on the Hungarian Government not to take any steps which would undermine that decision.

In addition, the Hungarian authorities had been required to show ‘special vigilance and a vigorous reaction’ (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005-VII), which in the instant case meant taking sufficient steps to ensure that R.S. served his sentence, as handed down, for murder and attempted murder.

The positive obligations under Article 2 had required that, prior to agreeing and implementing R.S.'s release and transfer, the Hungarian authorities should have taken reasonable measures to ensure that R.S. would continue to serve his sentence in Azerbaijan. However, they had failed to seek or obtain adequate assurances as to the continued detention of R.S. prior to deciding to transfer R.S. back to Azerbaijan.

The disclosed correspondence between the respondent Governments showed that no such assurances had been sought. Furthermore, a letter from the Azerbaijani Ministry of Justice dated 15 August 2012 to the Hungarian Ministry of Public Administration and Justice appeared to have been written in general terms, setting out applicable domestic law. It did not state, in specific terms, how it was proposed that R.S. would be dealt with following his transfer, a fact that was confirmed by the Azerbaijani Government in their observations.

As regards the question of assurances made between States, the Court's established practice was to assess whether they provided a sufficient guarantee that the applicant would in practice be protected against the risk of treatment prohibited by the Convention (see Saadi v. the United Kingdom [GC], no. 13229/03, § 148, ECHR 2008; Ismoilov and Others v. Russia, no. 2947/06, §127, 24 April 2008; Soldatenko v. Ukraine, no. 2440/07, §§ 73–74, 23 October 2008; and Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, § 189, ECHR 2012 (extracts)).

The Hungarian authorities had been aware of the highly politically-charged nature of R.S.'s case, not least given R.S.'s admission in the course of the criminal proceedings that his motives had been related to the Nagorno-Karabakh conflict. The report of the Hungarian Commissioner for Fundamental Rights concluded that, taking account of all the circumstances, the Hungarian Government should have been aware that if R.S. were to be transferred to Azerbaijan his sentence would almost certainly be terminated and he would be released, because the Azerbaijani public deemed the case to concern an ‘honourable murder’. The Parliamentary Assembly of the Council of Europe had reached a similar conclusion.

The applicants submitted that the Hungarian authorities knew or ought to have known that the Azerbaijani authorities would release R.S. on his return. The applicants referred to statements made by Hungarian high public officials and allegations reported in the media that the Hungarian Government had been aware of the possible outcome following the transfer and had allowed it to go ahead in order for Hungary to be able to sell government bonds to Azerbaijan. In Military and Paramilitary Activities in and against Nicaragua the ICJ had indicated that statements emanating from high-ranking political figures were of particular probative value when the acknowledged facts or conduct were unfavourable to the State. The Court had adopted that approach and extended its application to prominent political figures in general in the case of Chiragov and Others (cited above, §§ 177–179). Further, taking into account the statements made by Azerbaijani officials in support of R.S. before his transfer, the applicants argued that the consequences of the transfer could have clearly been anticipated.

The decision to transfer R.S. appeared to have been made by the Minister of Justice without the involvement of any judge, court or prosecutor, or any other independent process of scrutiny or accountability. The Hungarian Government had not demonstrated that the domestic law had required the Minister to take account of relevant factors or to ignore irrelevant ones. Accordingly, the applicants submitted that there was an insufficient domestic legislative framework in place to regulate the transfer of sentenced prisoners in order to avoid arbitrariness or abuse of process. The applicants had been neither consulted nor informed about the decision taken by the Hungarian authorities to transfer R.S. to Azerbaijan.

The applicants pointed to inconsistencies in the observations of the respondent Governments as regards the number of transfer requests received and the reasons for their refusal.

Lastly, the applicants dismissed Hungary's argument that it had had reason to believe that, as a Council of Europe member State, Azerbaijan would act in line with its international obligations. The fact that a State was a member of the Council of Europe did not constitute grounds for presuming that it would behave in line with its international obligations.

The Hungarian Government denied that it had violated any of its positive obligations under Article 2 of the Convention. The authorities had conducted criminal proceedings and had found R.S. guilty of premeditated murder with malice and extraordinary cruelty as well as the preparation of murder and had sentenced him to life imprisonment, to be served in a maximum security prison.

R.S.'s transfer to Azerbaijan had taken place in full accordance with the relevant international legal provisions and Hungarian laws. The Hungarian Government had not known (and could not have known) that there was a probability of R.S.'s release following his transfer. Azerbaijan was a Council of Europe Member State and a contracting State to the Transfer Convention. Hungary had had every reason to believe that Azerbaijan would act in line with its international obligations. Hungary had acted in good faith and in accordance with the provisions of the Transfer Convention.

Neither the Transfer Convention nor the domestic law had obliged the Hungarian authorities to obtain assurances from Azerbaijan, and nor did the relevant provisions refer to the possibility of obtaining such assurances. As required by the Transfer Convention, the Hungarian Government had requested further information from the Azerbaijani authorities; the latter had responded, stating that it would continue with the enforcement of the sentence without any ‘conversion’ or new proceedings being instituted. They had further stated that under the Azerbaijani Criminal Code the sentence of a person serving life imprisonment could only be changed by a court and that such a person could only be released after having served twenty-five years of imprisonment. The Hungarian authorities had had no reason to believe that the Azerbaijani authorities would act in defiance of that official letter.

Previous requests for the transfer of R.S. had been submitted by Azerbaijan but no decision had been taken because another set of criminal proceedings for violence against a prison guard had been pending against him. In respect of those proceedings, R.S. had eventually been convicted and sentenced to eight months' imprisonment, suspended for two years. Following the completion of those proceedings in January 2008, no further request for the transfer of R.S. had been submitted by Azerbaijan until 2012.

The Armenian Government took the view that the Hungarian authorities had not demonstrated sufficient diligence or scrutiny when reviewing the transfer request and assessing the risk factors. The Hungarian authorities had known or ought to have known that there was a high probability of R.S. being released by the Azerbaijani authorities following his transfer, especially in the light of the circumstances of the conflict between Armenia and Azerbaijan and the statements made by high-ranking officials calling for R.S. to be released, but also in view of the vigorous interest shown by the Azerbaijani authorities in having R.S. returned.

In that regard, the Hungarian Commissioner for Fundamental Rights had concluded in a report that the Hungarian Government should have been aware of the consequences of the transfer in the light of the view in Azerbaijan of the murder as ‘patriotic’ and the publicity calling for R.S.'s release, as well as the fact that Azerbaijan had not committed itself in any official form to not granting a pardon or to asking for the consent of Hungary before granting one. Relying on the UNHCR Note on Diplomatic Assurances and the Court's case-law (see Soering v. the United Kingdom, 7 July 1989, Series A no. 161; Baysakov and Others v. Ukraine, no. 54131/08, § 51, 18 February 2010; Klein v. Russia, no. 24268/08, §§ 55–56, 1 April 2010; and Saadi v. Italy [GC], no. 37201/06, § 147, ECHR 2008), the Armenian Government argued that the assurances received by the Hungarian authorities from Azerbaijan had been insufficient. It furthermore argued that simply restating legal provisions could not be considered to constitute sufficient diplomatic assurance. Furthermore, the authorities giving such assurances had to possess the authority to provide them.

The Hungarian authorities had failed to conduct a thorough investigation into the transfer procedures and potential outcomes and had based the transfer decision on unreliable ‘assurances’ which simply recited domestic laws and were vague and lacked precision.

R.S. had clearly committed the offences against his two victims because of their nationality and ethnic origin, as was the conclusion of the Hungarian court when convicting him. The fact that the victims' nationality was the motive for the offences was treated by the trial court as an aggravating circumstance.

The various actions taken by the Azerbaijani authorities, including pardoning R.S., had been carried out for the very reason that his actions had been committed against Armenian military officers. In its detailed 2014 report on the case of R.S. (see paragraph 41 above), the Parliamentary Assembly of the Council of Europe had concluded that:

The applicants referred to Nachova and Others, cited above, § 145 and § 160), pointing to the Court's view on racial violence and the specific requirement to enforce the criminal law in that sphere.

Article 12 of the Transfer Convention did not provide for an absolute entitlement to grant pardons. The interpretation of the Transfer Convention by the Azerbaijani Government had failed to take into account the object and purpose of the treaty, namely the furtherance of the ends of justice and the social rehabilitation of sentenced persons by allowing foreigners deprived of their liberty the opportunity to serve their sentences within their own society. The applicants argued that Article 12 should be read as a safeguard clause, intended to ensure that there was no bar on the application of national laws on amnesty and pardon, in accordance with international law, if and when it would be reasonable to apply such a measure. Even assuming that there was an absolute right to grant pardons, Article 12 of the Transfer Convention could not be interpreted as constituting a violation under the ECHR or other international instruments.

While there was nothing under Article 12 of the Transfer Convention to suggest that the receiving State should seek the consent of the sentencing State before a pardon or an amnesty was granted, the applicants referred to the declaration of January 2001 that Azerbaijan submitted at the ratification of the Transfer Convention and argued that, according to the International Law Commission's Guide to Practice on Reservations to Treaties and under the Vienna Convention on the Law of Treaties and judicial practice, that declaration in fact constituted a reservation and that the relevant legal consequences therefore applied. Under Articles 21 and 23 of the Vienna Convention, a reservation established with regard to another party modified those provisions to the same extent for that other party in its relations with the State expressing the reservation question, and any claim to the contrary would run against the fundamental principle of the sovereign equality of States. Azerbaijan could not, therefore, avoid the legal effects of its own reservation. Its decision regarding the pardon of R.S. should have been agreed with the competent authorities of Hungary. If the Court accepted that the declaration of Azerbaijan constituted an interpretative declaration and not a reservation, it would show the understanding of the Republic of Azerbaijan to be that the correct interpretation of Article 12 implied that the consent of the sentencing State must be sought. Azerbaijan had not acted in good faith.

Lastly, the applicants argued that the UN Convention on the Elimination of All Forms of Racial Discrimination, to which both Azerbaijan and Hungary were parties, was relevant in the circumstances of the case. The applicants referred in particular to Articles 5 and 6 and argued that, following the transfer of R.S. to Azerbaijan, Hungary's jurisdiction had been substituted for that of Azerbaijan's as regards the need for effective protection and remedies and the enforcement of the punishment. The pardoning of R.S. had failed to ensure an appropriate punishment for a crime motivated by the ethnic origin of the victims.

The Azerbaijani Government denied that there had been a violation of Article 14 and referred to the difficulties inherent in finding such a violation (see Nachova and Others, cited above, § 157). It could not be established that the ethnic origin of the victims had been the sole motive for R.S.'s actions. He had been motivated by a number of factors and his motivation should be seen in the light of the provocations he had been exposed to by the Armenian officers and of his personal history. The Azerbaijani Government reiterated that they strongly denied having acknowledged or accepted R.S.'s conduct as their own. Azerbaijan did not approve of the crimes and it accepted that R.S. had been properly convicted. Azerbaijan's dissatisfaction emanated from the length of his sentence, given all the circumstances.

The Azerbaijani Government denied that the granting of the presidential pardon had been motivated by discrimination and reiterated the same reasons for that decision as advanced in the context of Article 2 (see paragraphs 133–135 above). It also submitted two statements by Azerbaijani officials which showed that R.S.'s actions had never been approved or justified at State level (see paragraph 26 above).

The Hungarian court had clearly established that R.S.'s crimes had been committed ‘exclusively because of the ethnicity of the victims.’ The Armenian Government argued that Azerbaijan had not demonstrated the required ‘special vigilance’ and ‘vigorous reaction’, as set out in Nachova and Others (cited above) but had instead glorified and encouraged the killing of Armenians and praised a person who had been convicted of the murder and attempted murder of Armenians on the basis of their ethnicity. Statements made by high-ranking officials of Azerbaijan had been made in breach of Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination.

Discrimination is treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV). Discrimination on account of, inter alia, a person's ethnic origin is a form of racial discrimination. Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy's vision of a society in which diversity is not perceived as a threat but as a source of enrichment (see Nachova and Others, cited above, § 145, and Timishev v. Russia, nos. 55762/00 and 55974/00, § 56, ECHR 2005). The Court has also held that no difference in treatment which is based exclusively or to a decisive extent on a person's ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures (see Timishev, cited above, § 58).

As to the burden of proof in this sphere, the Court reiterates that in the proceedings before it there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. Proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (see Nachova, cited above, § 147).

The Court has further recognised that Convention proceedings do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (see Aktaş v. Turkey, no. 24351/94, § 272, ECHR 2003-V). In certain circumstances, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation on how the events in question occurred (see Al Nashiri v. Romania, no. 33234/12, §§ 492–493, 31 May 2018, and the cases cited therein). Finally, having recognised that proving racial motivation will often be extremely difficult in practice (see, among many other authorities, Mižigárová v. Slovakia, no. 74832/01, § 120, 14 December 2010), the Court did not rule out requiring a respondent Government to disprove an arguable allegation of discrimination in certain cases of alleged discrimination and, if they fail to do so, find a violation of Article 14 of the Convention on that basis (see Nachova, cited above, § 157; Stoica v. Romania, no. 42722/02, § 130, 4 March 2008; and Adam v. Slovakia, no. 68066/12, § 91, 26 July 2016).

At the outset, the Court observes that the Hungarian courts convicted R.S. of committing an exceptionally cruel murder and of making preparations for another murder; moreover, the sole motive for those crimes was the Armenian nationality of his victims (see paragraph 15 above). The ethnic bias in respect of R.S.'s crimes was thus fully investigated and highlighted by the Hungarian courts, and the Court sees no reasons to question those conclusions. Nor did the applicants in the present case complain of a failure to investigate racist motives for R.S.'s crimes. In fact, the applicants submitted under Article 14 of the Convention that the Armenian ethnic origin of the victims had not only been the main reason for the said crimes, but also for the various subsequent actions of the Azerbaijani authorities, including the pardoning and glorification of the perpetrator. In that respect, the applicants' discrimination complaint differs significantly from complaints typically raised under the procedural limb of Articles 2 or 3 in other cases concerning discriminatory violence (compare with, among many other authorities, Lakatošová and Lakatoš v. Slovakia, no. 655/16, § 65, 11 December 2018; Ciorcan and Others v. Romania, nos. 29414/09 and 44841/09, § 152, 27 January 2015; and Angelova and Iliev, cited above, § 107).

The Court has already found that the Azerbaijani authorities' actions in the present case constituted a breach of the procedural limb of Article 2 (see paragraph 172 above). Faced with the applicants' complaint of a violation of Article 14 taken in conjunction with Article 2, as formulated, the Court's task is to establish whether or not the Armenian ethnic origin of R.S.'s victims and the nature of his crimes played a role in the measures taken by the Azerbaijani authorities following his return to Azerbaijan.

In this connection, the Court observes that the applicants have provided a number of indications in support of their claim. Firstly, R.S. was pardoned immediately upon his return to Azerbaijan; there is nothing in the case file to indicate that a formal request to this end was ever made, and nor is there any indication that there ensued any kind of reflection process or legal procedure for the pardon (see paragraph 29 above). Secondly, R.S. was not only reinstated to his post in the military, he was also promoted in military rank in a public ceremony shortly after his return to Azerbaijan. Moreover, he received a flat in Baku, together with salary arrears in respect of the entire period that he had spent in prison (even though the latter measure was provided under the domestic law only in respect of acquitted persons — see paragraph 28 above). As already stated, the Government did not indicate a domestic legal basis for all of those additional measures (see paragraph 169 above), which were understandably perceived as constituting rewards for R.S.'s actions (see paragraph 172 above). Nor have they provided any past examples of other convicted murderers who received analogous benefits upon their release following a presidential pardon.

In addition, the Court finds particularly disturbing the statements made by a number of Azerbaijani officials glorifying R.S., his deeds and his pardon (see paragraph 25 above). It also deplores the fact that a large majority of those statements expressed particular support for the fact that R.S.'s crimes had been directed against Armenian soldiers, congratulated him on his actions and called him a patriot, a role model and a hero.

The applicants also drew the Court's attention to the fact that a special page on the website of the President of Azerbaijan had been created, labelled ‘Letters of Appreciation regarding [R.S.]’, where individuals could express their congratulations on his release and pardon (see paragraph 102 above). A vast number of those letters were still viewable on that webpage, all of them thanking the President for pardoning R.S. on the basis that they agreed with his having killed his Armenian victim. While it is true that the President himself had never posted anything in that section, its mere existence and the reason therefor pointed to the idea that R.S. had been pardoned because his attack had been of an ethnic nature and that the granting of the pardon could be perceived as an important step in the process of legitimising and glorifying R.S.'s actions.

In the light of the above, and bearing in mind that the present case concerns one of the most fundamental rights guaranteed by the Convention, the Court is satisfied that the applicants have put forward sufficiently strong, clear and concordant inferences as to make a convincing prima facie case that the measures taken by the Azerbaijani authorities in respect of R.S. were racially motivated. The Court is mindful of the difficulty faced by the applicants in proving such bias beyond a reasonable doubt, given that the facts in issue lie wholly, or in large part, within the exclusive knowledge of the Azerbaijani authorities. The Court considers that, given the particular circumstances of the present case, it was therefore incumbent on the respondent Government to disprove the arguable discrimination allegation made by the applicants (see paragraph 212 above).

For their part, the Azerbaijani Government sought to justify their actions by relying on the same reasons they had advanced in order to justify R.S.'s pardon. Having already examined those arguments in the context of the applicants' complaint under the procedural limb of Article 2 and dismissed them as unconvincing (see paragraphs 165–168 above), the Court sees no reason to hold otherwise in the context of the present complaint.

The Azerbaijani Government also submitted two statements made by public officials in support of their contention that their actions in respect of R.S. had not been discriminatory (see paragraph 26 above). At this juncture, the Court reiterates that the present case does not merely concern R.S.'s pardon, but more generally the hero's welcome accorded to him, the various benefits granted to him, and the unquestionable approval of his actions expressed by high-ranking officials and by Azerbaijani society as a whole (see paragraph 169 above). In the Court's view, the two statements provided by the Azerbaijani Government are therefore not sufficient 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.

In the light of these circumstances, the Court considers that the Government have failed to disprove the applicants' arguable allegation of discrimination. Given the specific circumstances of the present case, the Court therefore considers that there has been a violation of Article 14 in conjunction with Article 2 of the Convention by Azerbaijan.