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On August 31, 2012 Ramil Sahib Safarov, an Azerbaijani soldier who had been serving his life imprisonment sentence in Hungary for the brutal killing of an Armenian fellow soldier, was granted a presidential pardon shortly after being transferred by Hungary to his home country under the Convention on the Transfer of Sentenced Persons, an international agreement. On September 2, the State Secretary of the Hungarian Ministry of Foreign Affairs protested against Azerbaijan’s move in a diplomatic note. Azerbaijani officials, however, maintain that Azerbaijan’s conduct fully complied with the Convention because the receiving state may grant pardon to the sentenced person pursuant to Article 12 of the Convention.
In fact, Article 12 expresses the right to pardon in such a plain language that it seems almost impossible to argue that the contested move constitutes a breach of the Convention. If one considers the objective, the spirit and the overall structure of the Convention, however, it becomes clear that Azerbaijan flagrantly misused the instrument. The question is only whether this misuse is the unfortunate consequence of a drafting error in the Convention, or amounts to a violation of international law by Azerbaijan.
At the time of its adoption, the Convention tried to meet the challenge that the disproportionally high number of foreign detainees posed to the prison systems in Europe. The goal was to promote social integration without impairing the demands of justice. The preamble states that the Convention should “further the ends of justice and the social rehabilitation of sentenced persons”. As Candido Cunha recognized, “the ends of justice, including the enforcement of the sentence, are a major aim of the Convention. The latter therefore does not authorise action designed to obviate or by-pass the execution of a sentence. Indeed, upon agreeing to a transfer, administering States undertake the responsibility to execute the sentence, either by way of continuing enforcement, or by way of conversion.”
The interpretation that the receipt of a sentenced person involves an undertaking on the part of the receiving state to execute the sentence can be supported by several provisions of the Convention. In particular, Article 10 paragraph 1 provides that the receiving state “shall be bound by the legal nature and duration of the sentence as determined by the sentencing State”. This is the case if the receiving state opts for “continued enforcement”, the automatic acknowledgment of the sentence of the transferring state, as Azerbaijan did in an official letter sent to Hungary on August 15, 2012.
Analysts have pointed out that Azerbaijan, in this letter, did not promise not to grant pardon to Safarov, therefore it cannot be said that it breached an undertaking by doing so. This is not quite correct. As seen above, Azerbaijan can be said to have breached its undertaking to continue the enforcement of the Hungarian sentence according to Article 10 paragraph 1. It can also be said to have breached its obligation “to afford [the other Party] the widest measure of co-operation in respect of the transfer of sentenced persons” it undertook in Article 2 paragraph 1 of the Convention. Obviously, by informing the Hungarian party of specific provisions of the Azerbaijani Criminal Code but concealing the intention not to apply them in practice, Azerbaijan seriously breached its co-operation duty.
Azerbaijan’s real intention is significant in another respect as well. According to Article 2 paragraph 2 of the Convention, “a person sentenced in the territory of a Party may be transferred to the territory of another Party, in accordance with the provisions of this Convention, in order to serve the sentence imposed on him”. It follows that a person may not be transferred under the Convention for a purpose other than serving his sentence. Since Safarov was released as soon as he arrived to Azerbaijan, the transfer in the present case obviously did not have the purpose that he serve his sentence there. Since Azerbaijan’s intention did not comply with the Convention’s requirements, the transfer was invalid under the Convention. Azerbaijan, it seems, not only misused but breached the Convention by granting pardon to Safarov.
–Zoltan S. Novak is an attorney and writer residing in Budapest.
