C Explanatory
memorandum by Mr Chope, rapporteur
1 Introduction
1.1 Procedure
1. On 5 October 2012, the Committee on Legal Affairs
and Human Rights was seized for report on “Measures to prevent the
abusive use of the Council of Europe Convention on the Transfer
of Sentenced Persons”. At its meeting on 12 November 2012, the committee
appointed Mr Renato Farina (Italy, EPP/CD) rapporteur.
2. On 11 December 2012, the committee held an exchange of views
with Ms Anita van de Kar-Bachelet, Secretary to the Council of Europe’s
Committee of Experts on the Operation of European Conventions on
Co-Operation in Criminal Matters (PC-OC), based on information compiled
by the Secretariat beforehand.
Note On 25 June 2013, the
committee considered an introductory memorandum. Following Mr Farina’s
departure from the Assembly, the committee appointed me, on 4 September
2013, as the new rapporteur. On 12 December 2013, the committee
held an exchange of views with Mr Eugenio Selvaggi, Deputy Prosecutor
General at the Court of Cassation in Rome and former Chairperson
and member of the PC-OC since 1994.
Note
1.2 The issues at stake
3. The above reference to committee followed on from
a current affairs debate held on 4 October 2012 on the “Safarov
case”,
Note which raised concern
about a possible improper use
Note of
the Convention on the Transfer of Sentenced Persons (
ETS
No. 112).
Note
4. The purpose of this report is to examine the legal issues
raised by the Safarov case, which concerned the transfer, under
the convention, from Hungary to Azerbaijan, of convicted murderer
Ramil Safarov, and the presidential pardon subsequently granted
to him. The scope of the present report will be limited mainly to
the alleged abusive use, by Azerbaijan, of Article 12 of the convention,
which inter alia provides
for the granting of pardon. This case may have set a precedent which
could negatively affect the proper use of this convention in the
future.
2 The Safarov
case
2.1 Events leading
to Mr Safarov’s return to Azerbaijan and his subsequent pardon
5. In January 2004, Ramil Safarov, a lieutenant in the
Azerbaijani army, participated in an English language training course
in Budapest, Hungary, which was organised within the framework of
the “Partnership for Peace” programme for military personnel from
former Soviet Union countries, sponsored by the North Atlantic Treaty Organisation
(NATO). Two Armenian officers, Gurgen Margayan and Hayk Makuchyan,
also took part in this course. In the evening of 17 February 2004,
Ramil Safarov bought an axe and a honing stone with the intention of
killing the Armenian participants on the language course. The next
day, he sharpened the axe in his room. At around 5 a.m. on 19 February,
he took the axe and went to Gurgen Margayan’s room. He found the
door unlocked and struck Mr Margayan down with 16 blows of his axe
while the latter was asleep, almost severing his head from his body.
Gurgen Margayan died at the scene. Ramil Safarov then went to Hayk
Makuchyan’s room with the intention of murdering him too, but found
the door locked. He attempted to break the door with his axe, but
by that time, students in the neighbouring room had woken up and
prevented him from carrying out his plan until the police arrived.
The Hungarian police, which had been called by Gurgen Margayan’s
room-mate, arrested Ramil Safarov at the scene.
6. Criminal proceedings were instigated against Ramil Safarov
in Hungary. During his trial, Mr Safarov confessed to the deed and
showed no remorse for his crime, instead freely admitting that the
only reason for killing Gurgen Margayan had been that he was Armenian.
Note On
13 April 2006, a Hungarian first-instance court found Mr Safarov
guilty of the premeditated and unusually cruel murder of Gurgen
Margayan and the attempted murder of Hayk Makuchyan, and sentenced
him to life imprisonment without the possibility of early release
for 30 years. The fact that the motive of the murder had been the
victim’s nationality and that Mr Safarov’s confession completely
lacked regret or compassion were treated as aggravating circumstances.
Note On 22 February 2007, the Hungarian Court
of Appeal upheld the ruling and dismissed the appeal filed by Ramil Safarov.
Note
7. After serving eight years of his life sentence in Hungary,
Ramil Safarov, upon his request, was transferred to Azerbaijan on
31 August 2012 pursuant to arrangements foreseen under the Convention
on the Transfer of Sentenced Persons. Upon arrival, he was given
a hero’s welcome, granted a full pardon by President Ilham Aliev
and, within a few hours, released from custody. He was also assigned
an apartment in Baku and given eight years’ back pay. Moreover,
the Minister of Defence reinstated him in the army and promoted
him to the rank of major in a public ceremony.
Note
8. These events gave rise to protests in Yerevan, Budapest and
elsewhere.
Note On
31 August 2012, the Armenian Government suspended diplomatic relations
with Hungary in response to the latter’s decision to transfer Ramil
Safarov to Azerbaijan, which was regarded as an unfriendly act.
Note Moreover, the Armenian authorities
addressed a note verbale to the President of the United Nations
Human Rights Council, calling on member States to condemn Mr Safarov’s
pardon and release.
Note The release also appears to have led
to an escalation of the tensions between Armenia and Azerbaijan,
with Armenian President Serzh Sargsyan indicating that his country
was ready for war with Azerbaijan if it were to break out.
Note
9. The Hungarian authorities, for their part, issued a statement
indicating that the transfer had been approved in accordance with
the Convention on the Transfer of Sentenced Persons, to which both
Hungary and Azerbaijan are a Party. Moreover, both the Ministry
of Public Administration and Justice and the Ministry of Foreign
Affairs stated that they had received assurances from the Azerbaijani
authorities that Ramil Safarov would remain in prison for the remainder
of his sentence.
Note According
to Hungarian State officials, the Deputy Minister of Justice of
Azerbaijan, Vilayat Zahirov, had sent an official letter to the
Hungarian Ministry of Public Administration and Justice on 15 August
2012, stating 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 Azerbaijan were carried out in
accordance with Article 9.1.
a of
the Convention on the Transfer of Sentenced Persons.
Note Article 9 concerns
the general principles governing the enforcement of the sentence
in the administering State, with paragraph 1 stating that administering
States may choose between two ways of enforcement: they may either
continue the enforcement (pursuant to sub-paragraph
a) or convert the sentence into
a decision which substitutes a sanction prescribed by their own
laws (pursuant to sub-paragraph
b).
In line with the assurance that prison sentences issued abroad were
continually enforced in Azerbaijan, without any conversion of their
sentences and without having to go through any new judicial procedure,
Azerbaijan had made a declaration on 25 January 2001 stating that:
“[Azerbaijan] totally excludes the
procedures provided in Article 9.1.
b of
the convention”.
Note Mr Zahirov further indicated that
according to Article 57.3 of the Azerbaijani Criminal Code, 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 or
the convict could be released on conditional parole only after serving
at least 25 years of his prison sentence.
Note The Azerbaijani
authorities subsequently denied having given any diplomatic assurances
to the Hungarian authorities.
Note The Hungarian authorities protested
and condemned Azerbaijan’s decision to free Ramil Safarov, and summoned
the Azerbaijani Ambassador in Budapest over the case.
Note
10. In March 2013, the legal successors of Gurgen Margayan as
well as Hayk Makuchyan filed a complaint against Azerbaijan and
Hungary before the European Court of Human Rights (“the Court”)
alleging a violation of Article 2 (right to life) and Article 14
(prohibition of discrimination) of the European Convention on Human Rights
(ETS No. 5).
Note Moreover, in March
2013, Armenia expressed its intention to refer the case to the United Nations
Committee on the Elimination of Racial Discrimination
Note under Article 11
of the United Nations Convention on the Elimination of All Forms
of Racial Discrimination.
2.2 International reaction
to Mr Safarov’s release
11. The decision by the Azerbaijani President to pardon
Ramil Safarov led to prompt and widespread international condemnation
from international organisations, governments as well as non-governmental organisations
(NGOs), several of whom expressed concern that the events may undermine
the reconciliation process between Armenia and Azerbaijan and contribute
to a further escalation of the tensions between the two States.
2.2.1 Reaction at the
Council of Europe
12. The Secretary General of the Council of Europe, Thorbjørn
Jagland, stated that making a hero out of a convicted murderer was
unacceptable.
Note The
Parliamentary Assembly’s President, Jean-Claude Mignon, stated that
the liberation of Mr Safarov was an abusive use of a Council of
Europe legal instrument.
Note His release was
likewise condemned by several members of the Parliamentary Assembly
during the current affairs debate held on the Safarov case on 4
October 2012. Furthermore, the Council of Europe’s Commissioner
for Human Rights, Nils Muižnieks, deplored the pardoning and glorification
of a person who had committed a crime motivated by the victim’s
nationality,
Note as did the
European Commission against Racism and Intolerance (ECRI) which
further stressed that cases such as that of Ramil Safarov may cultivate
a sense of impunity for the perpetrators of racist offences of the
most serious nature.
Note
2.2.2 Reaction beyond
the Council of Europe
13. Beyond the Council of Europe, United Nations Secretary-General
Ban Ki-Moon expressed concern about the developments surrounding
Mr Safarov’s transfer to Azerbaijan and subsequent pardon, and underscored
the importance of adhering to the rule of law.
Note Similarly, the
United Nations High Commissioner for Human Rights, Navanethem Pillay,
stated that international standards regarding accountability for
serious crimes should be upheld.
Note
14. At the European Union level, the European Union High Representative
for Foreign Affairs and Security Policy, Catherine Ashton, as well
as Štefan Füle, Commissioner for Enlargement and Neighbourhood Policy, expressed
concern about the pardon granted to Mr Safarov.
Note The President
of the European Parliament, Martin Schulz, stated that the Convention
on the Transfer of Sentenced Persons should not be abused for political
purposes,
Note and
the European Parliament adopted a resolution condemning Mr Safarov’s
pardon.
Note The European Union–Armenia Parliamentary
Cooperation Committee (PCC) Co-Chair, Milan Cabrnoch, voiced concern
that the presidential pardon granted to Mr Safarov might be seen
as a dangerous misuse of judicial proceedings.
Note
15. The OSCE Minsk Group Co-Chairs, Ambassadors Igor Popov of
the Russian Federation, Jacques Faure of France, and Ian Kelly of
the United States of America, expressed their deep concern and regret
about the damage the pardon and any attempts to glorify the crime
had done to the peace process and trust between the two sides,
Note as did NATO Secretary
General Anders Fogh Rasmussen.
Note Furthermore,
Nikolav Bordyzha, Secretary-General of the Collective Security Treaty
Organisation, stated that the decision by the Azerbaijani authorities
to pardon Mr Safarov was unjustifiable and contrary to international
law.
Note
16. Amnesty International considered that the pardoning and promotion
of Mr Safarov may be perceived as an endorsement of ethnically motivated
violence, and called on the Azerbaijani Government to rescind any privileges
awarded to him and to publicly condemn ethnic violence.
Note
17. In the same vein, several ministers, ambassadors and members
of parliament from various States within and outside the Council
of Europe issued statements expressing concern about the pardoning
and glorification of Mr Safarov, among them the Foreign Ministries
of Cyprus,
Note France,
Note Luxembourg,
Note Norway,
Note the Russian Federation
Note and
Sweden,
Note the Secretary of State for European
and NATO Affairs of the United Kingdom,
Note the Canadian Embassy to Turkey, Georgia,
Azerbaijan and Turkmenistan
Note and the Chairperson of
the Canada–Armenia Parliamentary Friendship Group of the Canadian
House of Commons,
Note as well as United States President Barack
Obama (via the National Security Council),
Note the State Department
Note and
the Chairperson of the Foreign Relations Committee of the Senate
of the United States.
Note
3 The legal issues
raised by the Safarov case
3.1 Main provisions
and purpose of the convention
18. The primary aim of the Convention on the Transfer
of Sentenced Persons is to facilitate the social rehabilitation
of prisoners by providing, for persons who have been sentenced to
a term of imprisonment abroad, the possibility of serving the remainder
of their sentence in their home country. Paragraph 9 of the explanatory
report, which is designed to give guidance to States Parties on
the interpretation of the convention, states that: “As penal policy
has come to lay greater emphasis upon the social rehabilitation
of offenders, it may be of paramount importance that the sanction
imposed on the offender is enforced in his home country rather than
in the State where the offence was committed and the judgment rendered.
This policy is also rooted in humanitarian considerations: difficulties
in communication by reason of language barriers, alienation from
local culture and customs, and the absence of contacts with relatives
may have detrimental effects on the foreign prisoner. The repatriation
of sentenced persons may therefore be in the best interests of the
prisoners as well as of the governments concerned.”
Note Indeed,
studies indicate that foreign prisoners experience problems relating
to culture, communication, access to services, etc., and that these
problems are most pronounced when cultural and language differences
are the strongest, and the barriers to communicating with family
and friends the severest.
Note There is a general
consensus that sentenced persons who serve their sentence in their home
country have a better chance of being rehabilitated, re-socialised
and reintegrated into the community than elsewhere.
Note
19. Under the convention, a transfer may be requested either by
the State in which the sentence was imposed (the sentencing State)
or the State of which the sentenced person is a national (the administering State).
The transfer is subject to the consent of both States and that of
the sentenced person. The convention does not impose any obligation
on the sentencing or administering State to agree to a transfer.
It merely sets the framework within which States are encouraged
to co-operate, and provides for a procedure for this purpose.
3.2 Assessment of the
application of the convention by Azerbaijan
20. The presidential pardon granted to Ramil Safarov
was purportedly based on Article 12 of the Convention on the Transfer
of Sentenced Persons, which provides that: “Each Party may grant
pardon, amnesty or commutation of the sentence in accordance with
its Constitution or other laws.” Azerbaijan, as the administering
State, indicated that Ramil Safarov could legally be pardoned by
virtue of Article 109.22 of the Constitution of the Republic of
Azerbaijan.
Note
21. Whilst this pardon complied with the letter of the Constitution
and was not formally in contravention of the convention, the question
arises whether it was consistent with the principles of the rule
of law and in conformity with the spirit of the Convention on the
Transfer of Sentenced Persons as enunciated in its Preamble. The
latter states that Council of Europe member States and other signatory
States are “[d]esirous of further developing international co-operation
in the field of criminal law” and that “such co-operation should further
the ends of justice and the social rehabilitation of sentenced persons”.
22. The subject of the immediate release of a person transferred
in accordance with the convention was first examined by the Parliamentary
Assembly
Note in
2001. The Assembly recommended that the Committee of Ministers draw
up a new recommendation to member States on the interpretation and
application of this instrument with, among others, the objective
of stating clearly that the convention is not designed to be used for
the immediate release of prisoners on return to their own country.
Note The
Committee of Ministers, for its part, indicated that it supported
the view that the convention is not primarily intended to be used
for the immediate release of prisoners upon return to their home
countries.
Note However, no specific mention of
the release of a sentenced person following a pardon under Article
12 of the convention was made.
23. While it is arguable that the objective of rehabilitation
is principally served in all cases of transfer,
Note one may
equally suggest that in the case of Ramil Safarov, the immediate
release upon transfer was incompatible with the notion of social
rehabilitation, since it was not ensured that Mr Safarov would serve
a minimum period of time appropriate to the seriousness of the crime
he had committed and that he showed a minimum of remorse allowing
the authorities to conclude that he would not re-offend following
his release.
24. Regardless of which of these readings one agrees with, there
can be little doubt that Ramil Safarov’s immediate pardon and release
on arrival in Azerbaijan jeopardised the convention’s second aim,
of ensuring continued and full enforcement of the sentence in the
interest of justice. This assessment is supported by the case law
of the European Court of Human Right on Article 2 of the European
Convention on Human Rights (right to life), according to which the
Court will scrutinise closely and intervene in cases where there
is a “manifest disproportion between the gravity of the act and
the punishment imposed”.
Note Furthermore,
the Court has held that “when an agent of the State, in particular
a law-enforcement officer, is convicted of a crime that violates
Article 2 of the Convention, the granting of an amnesty or pardon
can scarcely serve the purpose of an adequate punishment”.
Note
25. Azerbaijan’s efforts to facilitate Ramil Safarov’s transfer
would thus seem to have been motivated by interests other than accomplishing
the two-fold purpose of ensuring social rehabilitation and justice
by means of securing the continued enforcement of the sentence,
albeit closer to home. It can therefore be readily appreciated that
the decision to immediately pardon Mr Safarov on his arrival conflicted
with the principles of the rule of law.
26. Article 26 of the 1969 Vienna Convention on the Law of Treaties
provides that: “Every treaty in force is binding upon the parties
to it and must be performed by them in good faith.” It derives from
the nature of the convention that its proper application requires
mutual trust between the Parties involved. States Parties must therefore
negotiate and implement treaties in good faith. The spirit of the
Convention on the Transfer of Sentenced Persons implies that the
administering State respects and executes, in good faith, the judgment passed
by the sentencing State.
27. That said, the pardon granted to Ramil Safarov cannot be construed
as having been in conformity with the purpose of Article 12 of the
convention, and it was arguably contrary to the intention of the
drafters when they elaborated that provision. Black’s Law Dictionary
defines a pardon as “[a]n act of grace, proceeding from the power
entrusted with the execution of the laws, which exempts the individual
on whom it is bestowed from the punishment the law inflicts for
a crime he has committed”. The power to grant a pardon is usually
regulated at the constitutional level and commonly belongs to the
Head of State or the Parliament. After a pardon, a convict’s crime
is forgiven and the relevant penalty cancelled. Pardons are usually
granted when individuals have demonstrated that they have paid their
debt to society or are otherwise considered to be deserving of forgiveness.
In the case of Ramil Safarov, however, while there was no dispute
that he had committed the crime that he was found guilty of and
that it merited severe punishment, the presidential pardon was seemingly granted
as a reward for Hayk Makuchyan’s murder, motivated by nationalist
hate. It did not imply forgiveness, but the glorification of a crime
on political grounds.
28. The impression that Azerbaijan did not act in good faith in
applying Article 12 of the convention in Mr Safarov’s case is reinforced
by a systematic interpretation of the convention, which in Article
3.1.c stipulates as a condition
for transfer that the person concerned still has at least six months
of the sentence to serve. In the same vein, Mr Selvaggi recalled,
in the course of the committee’s exchange of views, the opinion
of the PC-OC concerning the refusal of some States to transfer certain
prisoners to Turkey on the grounds that there they would have benefited
from an amnesty law and been immediately released, so effectively
no sentence would have been served in the administering State. The
PC-OC found that such cases were outside the scope of the convention.
29. These considerations give rise to the conclusion that Azerbaijan’s
use of Article 12 of the convention to effectuate Ramil Safarov’s
immediate release upon transfer was contrary to the aim of this
provision and undermined the raison d’être of the convention.
30. The Safarov case also raises the issue whether the declaration
made by Azerbaijan in respect of Article 12 of the convention amounts
to a reservation and, if this were the case, whether the principle
of reciprocity would apply.
Note Azerbaijan has made
the following declaration: “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”.
Note The issue of whether this declaration is
subject to the principle of reciprocity, namely of whether Mr Safarov’s
pardon should have been agreed on with the Hungarian counterparts,
was examined in a PC-OC opinion received from the Council of Europe’s
Legal Advice Department and Treaty Office on 18 March 2013.
Note The
PC-OC concluded that, even if the Azerbaijani declarations were
in fact considered as a reservation within the meaning of Article
2 of the Vienna Convention on the Law of Treaties,
Note the
scope of the principle of reciprocity in this respect would still
need to be determined. In any event, the declaration made by Azerbaijan
to Article 12 of the convention illustrates the generally restrictive
attitude of Azerbaijan as a sentencing Party with regard to pardons
granted by others. The declaration made by Azerbaijan and the fact
that the Azerbaijani authorities did not inform their Hungarian counterparts
about their intention of granting an immediate pardon further supports
the conclusion that Azerbaijan did not apply the convention in good
faith.
31. Beyond the immediate diplomatic aftermath of the Safarov case,
there is reason to be concerned that misuses of the convention for
other purposes than those enunciated in the Preamble may entail
negative repercussions for the overall use and operation of the
convention. It may well be that States will in future be reluctant
to transfer sentenced persons to Azerbaijan for fear that they will
be pardoned in the manner Ramil Safarov was. As indicated above,
international co-operation in the administration of justice is principally
in the interest of the individuals concerned, as was acknowledged
inter alia by the European Court
of Human Rights in a case concerning a prisoner’s transfer under
the convention.
Note
3.3 Assessment of the
application of the convention by Hungary
32. While the application of Article 12 of the Convention
on the Transfer of Sentenced Persons to effectuate Ramil Safarov’s
immediate pardon and release upon transfer, though not per se constituting a breach of
the convention, cannot be regarded as an appropriate use of it by
Azerbaijan, the Safarov case also raises issues pertaining to the
application of the convention by the sentencing State, namely Hungary.
33. Formally, Hungary did not act contrary to the Convention on
the Transfer of Sentenced Persons, nor to international law more
broadly. The conditions for transfer as laid down in Article 3 of
the convention were met in the Safarov case. According to that provision,
a sentenced person may be transferred under the convention if the
following conditions are met: 1) the person is a national of the
administering State; 2) the judgment is final; 3) at the time of
receipt of the request for transfer, the sentenced person still
has at least six months of the sentence to serve or the sentence
is indeterminate; 4) the transfer is consented to by the sentenced
person or, in case of incapacity, by his or her legal representative;
5) the acts or omissions which led to the sentence constitute a
criminal offence according to the law of the administering State;
and 6) the sentencing and administering States agree to the transfer.
34. As noted above, Hungary transferred Mr Safarov on the assumption
that his sentence would continue to be enforced in Azerbaijan, and
that he would spend at least 25 years in prison. Yet, the question
may legitimately be raised as to whether the Hungarian authorities
could and ought to have foreseen the possibility that Ramil Safarov
would be released upon his transfer and in fact given rewards for
his crime. An assessment of this question hinges on whether the
assurances that the convict would remain in prison which Hungary maintains
having received by the Azerbaijani authorities were adequate in
the specific circumstances of the Safarov case.
35. It appears that the assurances were limited to stating in
general terms the manner in which sentences issued abroad are enforced
in Azerbaijan. Inasmuch as they confirmed that the State follows
the procedure laid down in Article 9.1.
a of
the Convention, they corresponded to Azerbaijan’s Declaration (see
paragraph 9 above) and contained the information that an administering
State is obliged to provide in any event, pursuant to Articles 6.1.
c and 9.2 of the Convention, upon
request of the sentencing State. This information primarily serves
to verify whether all the conditions for transfer have been met
in order to facilitate the sentencing State’s decision on whether
or not to agree to a transfer.
Note There
is reason to doubt that this information provided adequate assurances
in the Safarov case.
36. However, as mentioned above, the Azerbaijani authorities also
indicated to Hungary that national law provided that a life sentence
could only be replaced by a court with a term of imprisonment for
a specified period or the convict could be released on conditional
parole only after serving at least 25 years in prison. Irrespective of
whether or not one qualifies these statements as assurances, Hungary,
as a State Party to the convention, must have known that information
on the enforcement of a sentence was subject to any later decision
of the administering State on granting a pardon, for instance. This
is particularly true given that the letter from the Azerbaijani
authorities made no specific mention of Article 12 of the convention.
37. It remains debatable whether Hungary should have based its
decision to transfer Ramil Safarov on the inconclusive declarations
made by the Azerbaijani authorities. The suspicion that the assurances
may not have been appropriate in the specific case of Ramil Safarov
is corroborated by the fact that there appear to have been obvious
indications that Mr Safarov would be welcomed as a national hero
on his return. Most notably, the murder of Gurgen Margayan had generated
widespread public praise from high-ranking Azerbaijani State officials,
including the Azerbaijani Ombudsman
Note and the Permanent
Representative of Azerbaijan to the Council of Europe.
Note Hungary
must have been aware of this, especially given that the Armenian
authorities maintained that they had informed their Hungarian counterparts
on numerous occasions about the glorification in Azerbaijan of Mr
Safarov’s deed.
Note
38. For these reasons, and also keeping in mind the consistent
practice of the European Court of Human Rights of closely assessing
whether diplomatic assurances provide, in practice, sufficient guarantees
in the particular circumstances of a given case,
Note Hungary
can be criticised for not having requested more stringent assurances
from the Azerbaijani authorities. It would have been within Hungary’s
discretionary powers to refuse the transfer of Mr Safarov. As mentioned
above, the convention does not impose an obligation on Contracting
States to transfer prisoners, but merely requires them to co-operate.
Note This
can be derived
inter alia from
Article 2.1 of the convention, which states that: “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.”
39. Moreover, the question can be raised as to the adequacy of
Hungary’s response to Ramil Safarov’s pardon and release, in particular
whether it was sufficient for the authorities to summon the Azerbaijani Ambassador.
Admittedly, Hungary’s possibilities for action once Mr Safarov’s
transfer had been completed were limited by the fact that, pursuant
to Article 8 of the convention, the enforcement of the sentence
falls within the sole responsibility of the administering State.
In the same vein, Article 9.3 of the convention provides that: “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.”
4 Possible measures
to prevent future misuse of the convention
40. In light of the foregoing considerations, there is
sufficient ground for concluding that Ramil Safarov’s transfer to
Azerbaijan and subsequent pardon and release was the result of an
improper use of Article 12 of the Convention on the Transfer of
Sentenced Persons. That said, I will now turn to examining how such occurrences
can be prevented in future.
41. Any measures to prevent the improper use of the Convention
on the Transfer of Sentenced Persons, in particular of its Article
12, must not have a negative impact on the functioning of the convention.
Most notably, any such measure should be designed to ensure that
the convention maintains its flexibility and discretionary nature,
which are widely accepted to be among its key advantages,
Note and
that its practical application is not rendered ineffective by imposing
unduly strict conditions on transfers.
42. The appropriateness of means to prevent the misuse of Article
12 of the convention will furthermore depend on whether one regards
the Safarov case as an exceptional case unlikely to be followed
by others, or as a precedent highlighting that the problem was inherent
in the wording of this provision. At the exchange of views of the
committee in December 2013, Mr Selvaggi emphasised the political
and diplomatic nature of the issues raised by the Safarov case,
which had been influenced by international and historic relations.
Indeed, against the background of the specific circumstances surrounding
the Safarov case, including
inter alia the
fact that it involved a third State (namely Armenia),
Note it would appear that this case did
not set a precedent for similar instances of improper use of the
convention. On the contrary, States Parties to the convention will
in all likelihood be reluctant to risk creating a diplomatic incident
as has occurred between Armenia and Hungary over Ramil Safarov’s
transfer and the general condemnation by the international community
(as described above).
43. Article 12 can be interpreted and applied in a manner consistent
with the spirit of the convention and the rule of law, and in fact
it usually is. Consequently, there is no need to propose the amendment
of the convention given that the right to pardon is seen as a sovereign
right. Amending the convention may entail the risk that some of
the 64 Contracting States, which comprise 46 of the 47 Council of
Europe member States, as well as 18 non-member States ranging from
Australia to Panama and the United States of America
NoteNote (making the Convention on the Transfer
of Sentenced Persons one of the Council of Europe’s most ratified
conventions), could withdraw from the treaty. This, in turn, would
run counter to the
raison d’être of
the convention, namely the aim of promoting the widest possible
use of the convention for the sake of the humanitarian purposes
it pursues.
44. That said, different means of ensuring that Article 12 of
the convention is not misused in the manner it was in the Safarov
case can be envisaged. States negotiating a transfer under the convention
could conclude an ad hoc arrangement on the enforcement of sentences
in the form of an addendum to the agreement between the sentencing
and administering States. Such an arrangement would stipulate certain
more stringent assurances by the administering State to abide by
the general principles of the convention. It may contain information
on both general practices as well as on intentions in a specific
case at hand regarding pardons and/or amnesties. It could, for example,
be envisaged that the administering State should be required to
indicate any intention to grant a pardon or amnesty to the person
concerned, or even to undertake not to exercise its rights under
Article 12 of the convention before the convicted person has spent
a certain minimum time of his/her sentence in the administering
State. These matters deserve clarification prior to a transfer,
as the sentencing State has no competence for enforcing the sentence
once the authorities of the administering State have taken charge
of the convicted person.
Note This
recommendation would aim at encouraging States to co-operate fully
in implementing the convention while clarifying and, if need be,
specifying their commitment to the object and purpose of the convention.
5 Conclusions
45. The case of Ramil Safarov demonstrates that Article
12 of the Convention on the Transfer of Sentenced Persons, which
provides for the granting of pardons and amnesties, can be misused
to effectuate the immediate release of a sentenced person upon transfer
for purposes other than social rehabilitation so as to ensure justice.
Such a use of the convention is incompatible with the aim of Article
12 and the spirit of the convention. Whilst we have seen that the
Safarov case is unlikely to have set a precedent, and that Article
12 is not per se incompatible with the convention’s object and purpose,
measures should be taken to prevent future instances of improper
use of this provision.
46. The proper functioning of the Convention on the Transfer of
Sentenced Persons depends on negotiations in good faith between
Contracting States, and strict adherence to the principles of the
rule of law. States Parties to the convention should therefore,
in particular in cases with potential political or diplomatic implications,
be encouraged to conclude ad hoc arrangements on the enforcement
of sentences stipulating clear assurances by the administering State
to abide by the general principles of the convention, including
in the application of its Article 12. Such an arrangement may include
information on intentions in the case at hand regarding pardons
and/or amnesties, or even an undertaking by the administering State
not to exercise its prerogative(s) under Article 12 of the convention
before the convicted person has served a certain minimum time of
his/her sentence.
47. In the interest of international co-operation in the penal
field, and for the benefit of the numerous cases in which its application
provides humanitarian relief by facilitating the transfer of prisoners
and the continued enforcement closer to home of prison sentences
handed down abroad, the convention deserves the Assembly’s continued
support. The convention’s success depends largely on its flexibility.
A deletion or general restriction of Article 12 is therefore not
advisable. Instead, the draft resolution and recommendation propose the
conclusion of ad hoc arrangements to discourage abusive use of this
provision, as had occurred in the Safarov case.
