Case N 6.B. 515 /2004/ 128
By the name of the Republic of Hungary!
The Municipal Court of Budapest, based on the open sessions of November 23, 2004, February 8, September 27, December 15, 2005, March 4, March 7, April 13, 2006 and April 13, 2006, passed a judgement and pronounced the following
The accused Ramil Safarov, kept in preliminary detention from February 19, 2004, (born in Azerbaijan, Jabrail, on August 25, 1977; mother's name – Nubar Mammad Hasanova; place of residence – Azerbaijan, Baku, 14th district, 3 Ashirim Kusachi Street; citizen of Azerbaijan; passport series – P0706616)
To find him guilty:
Of committing an exceptionally cruel and premeditated, carefully prepared murder perpetrated with particular cruelty with mean and vile motives, as well as attempted murder of a second person.
In view of the above, the court passed judgement on aggregate punishment for the committed crimes as life imprisonment.
After serving his sentence, during the next 10 (ten) years, the accused is deprived of the right to visit the Republic of Hungary.
The imprisonment term should include the investigation period.
The accused is eligible for parole only after serving 30 (thirty) years.
The motion of Gurgen Margaryan's lawyer to exercise the civil rights of the crime victim (compensation) is not within the power of this court (Criminal Law), its implementation is within the laws of the Civil Law.
To confiscate the evidence of crime, axe, discovered in the course of the investigation, currently kept at the storehouse of General Service Department of Municipal Court under N Bj 281/2004 1-II, serial number 3.
To return to the accused Ramil Safarov the evidence of crime discovered and confiscated in the course of the investigation – numbered 1-2 in the list (sports shoes and clothes), to destroy the items numbered 4-II (polyethylene corpse bag, blanket, pillowcase, clothes, samples of hair, nails, fingerprints and palm prints).
The legal costs amount to 5, 441, 276 (five million four hundred forty-one thousand two hundred seventy-six) forints, out of which, 2, 343, 347 (two million three hundred forty-three thousand three hundred forty-seven) forints should be paid by the accused to the state and 3, 097, 929 (three million ninety-seven thousand nine hundred twenty-nine) forints should be paid by the state.
I. Foundation of the court decision
The municipal prosecutor's office instituted criminal proceedings number NF, 3383/2004/ 16-I against the accused Ramil Safarov for committing a premeditated and carefully prepared murder perpetrated with particular cruelty as well as attempted murder of a second person.
II. Personal data
Ramil Safarov, unmarried, has no one dependent on him. In 1991 (at the age of 14), he was admitted to Baku Military School, one year later, he was sent to military school in Turkey, where he studied four years, then he entered military academy in Turkey, where he also studied four years, and after graduation, in Turkey, he attended training courses for one year. In 2001, he returned to his country as an officer. At the time of the crime, he was senior lieutenant and served at the Higher Military School of Azerbaijan.
He had no previous convictions.
The Pest Central District Court instituted criminal proceedings under N 9. В. 22172/2005 against the accused for the assault of official person. The accused is mentally sane, he does not have dementia and he was of sound mind when he committed the criminal acts, he was fully conscious of his actions. The accused does not have post-traumatic stress disorder.
III. Factual data
Nagorno-Karabakh is located in the southwestern part of Azerbaijan, on the eastern slopes of Karabakh Mountains, near the border with Armenia. Nagorno-Karabakh Autonomous Oblast was formed on the territory of the former Karabakh khanate on July 7, 1923, within Azerbaijan. In 1988, the oblast's autonomy was abolished, which led to war between Karabakh and Azerbaijan. At the end of 1993, the control over the territory passed to the Armenian population. A ceasefire regime was established one year later through Russia's mediation. In 1996, Nagorno-Karabakh's parliament declared independence, including in the south of Nagorno-Karabakh, in the village of Jabrail where the accused was born.
The accused did not lose any of his relatives (parents, brothers) during the civil war, and none of them was wounded. However, there were losses among some of his distant relatives and countrymen during the military operations and he was aware of victims among the civilians (among them there were women, old people and children). It is because of this that hatred towards the Armenians was born in him, and it was the reason why he went to serve in the army where he prepared to kill as many Armenians as possible. He was under age (11-17 years old) during the civil war, and did not personally participate in the war, he only assisted in the transportation of the wounded soldiers and when he returned home as an officer after finishing his studies, the civil war was already over.
On January 11, 2004, Ramil Safarov arrived in Budapest to participate in three-month English language courses organized at the base of Zrinyi Miklos National Defence University. Officers from the countries of the former socialist camp were invited to attend the courses, two officers from each state, including Hungarian officers.
Armenian officers, later victims, lieutenant Gurgen Margaryan and captain Hayk Makuchyan, also attended the courses.
The course participants were accommodated in X district of Budapest, Ring Street Hungaria, 9-11, in double rooms on the third floor of building "K" of the National Defence University. The participants were accommodated so that officers from different countries would stay in one room and would have to communicate with each other in English.The course participants were accommodated in X district of Budapest, Ring Street Hungaria, 9-11, in double rooms on the third floor of building "K" of the National Defence University. The participants were accommodated so that officers from different countries would stay in one room and would have to communicate with each other in English.
Gurgen Margaryan, who later became the victim of the crime, was accommodated in room 218/а with Hungarian officer Balas Kuti and the second Armenian participant, Hayk Makuchyan, lived in room 220/b with Lithuanian officer Paulus Saulus. The accused was accommodated in one room with a Ukrainian officer who at the time of the crime was in Ukraine on a one-week leave for domestic reasons, so Safarov lived in the room alone in that period. The second Azerbaijani officer, Anar Rauf, lived in the opposite room with another officer.
When the accused and his compatriot came for the studies, they learned at the institute that two Armenians would participate in the courses. In the first days, they greeted each other, but then they stopped doing it as they were placed in different groups and did not meet during the lessons, but since they lived on the same floor, they often met each other in the corridor. The Armenians smiled when meeting them, but it seemed to him that the Armenians behaved "like the heroes of the victorious army towards the defeated."
An excursion to the city of Kecskemét was organized for the course participants on February 1, 2004. The excursion program included familiarization with the city, visit to the local military museum and wine cellar and dinner at a restaurant. The course participants were treated to alcohol at the cellar and none of the officers, including the Armenians, refused to drink, with the exception of the accused and his Azerbaijani colleague. While boarding the bus, Margaryan hit the accused in the leg strongly, the accused did not react, expecting Margaryan to apologize, but he did not apologize. Then the accused rose from his seat, came up to Margaryan and asked him if there were any problems. Margaryan replied that he had touched him accidentally, and smiled. The accused thought that he had taken a glass too much, and came back to his seat. After returning to the institute, the accused heard the Armenians (victims) walking behind him singing songs and laughing loudly when they emphasized the words "Karabakh-Artsakh" in the song, and then they swore loudly in Armenian.
Several days later, when the accused was talking to a Croatian major in the corridor, Margaryan hit a basketball between them strongly.
Around 10:00pm on February 16, when the accused was smoking in the corridor, he heard Margaryan's talk with Lithuanian officer Paulus Saulus; among other things, they talked about the Azerbaijani flag. Earlier, a couple of days before he overheard that talk, the Lithuanian officer was celebrating his birthday and the accused and his Azerbaijani colleague gifted him a souvenir trinket in the form of the Azerbaijani flag and the model of historical monument, Laim tower. During the talk, the accused heard Margaryan insulting the Azerbaijani flag.
The Azerbaijanis informed Demeter Attila, deputy head of the language courses, that some participants spoke insultingly of Muslim women during the courses and that after the lessons, they talked about Islam's ties with terrorism, but they did not mention the Armenians exactly.
Victim Gurgen Margaryan, born in 1978 (he was 10-16 years old during the Nagorno-Karabakh civil war), is one year younger than the accused. He was 27 years old at the time of the described events, 178 cm tall, strong, athletic. He served in the Armenian army as a lieutenant.
2. Decision and preparation
During the period of participation in the courses, a decision matured in the accused, on February 26, 2004, the anniversary of military clash between the Armenians and Azerbaijanis of February 26, 1992, resulting in many civilian victims, to take revenge for the Azerbaijani victims by killing both Armenians.
The desire to take revenge and hatred towards the Armenians constantly grew inside him, he did not want to wait until the anniversary anymore, and he decided that he would kill them at dawn on February 19, 2004. To carry out his plans, around 7:00pm on February 17, 2004, he went to the hypermarket of TESCO-GLOBAL joint-stock company in Budapest's XIV district, on Fogarasi Street, where he bought an axe with 65 cm long helve and 17×12.5 cm butt, and a grindstone, which he hid in his room, 219/А, on the third floor of building "K" of the National Defence University.
The next evening, he spoke, in his room, to the Azerbaijani officer who left to sleep around 10:30pm. After that, the accused did his English language lessons and then started grinding the axe with the grindstone he had earlier bought, then he went to the bathroom, after which he went out to smoke in the corridor. He waited until five o'clock in the morning, February 19, since he was sure that it is the time of the deepest phase of sleep.
3. Commission of the murder
The accused put a knife-dagger into his pocket, went out to the corridor, holding the axe in his hand, and knowing that strong-built Gurgen Margaryan lived in room 218/a, opened the door of his room, turned on the light and making sure in which bed victim Gurgen Margaryan was sleeping, approached him.
He raised the axe and with its sharp end delivered strong blows to the victim, he struck three blows on his head and on his neck, and then on his breast and limbs. Margaryan's roommate, Balas Kuti, woke up hearing the noise, but the accused calmed him saying that he would not touch him. At the moment of committing the crime, Ramil Safarov shouted insults in Russian and after killing Gurgen Margaryan, he lit a cigarette, finished smoking and threw the cigarette end on the victim's breast.
As a result of strong axe blows, Gurgen Margaryan sustained multiple external injuries: his head was almost completely separated from his body, his brainpan, skull base and facial bones were broken, his chin was smashed, his brain matter was grinded, his neck veins were torn, he had complete avulsion of the larynx, embolism of the respiratory tract caused by haemorrhage, comminuted fracture of the second and third cervical vertebrae, full rupture of the spinal cord in the neck, multiple cuts in the chest and cuts on the right wrist and left ankle. The victim died on the spot as a result of the multiple injuries. The victim's injuries on the head and neck in themselves were incompatible with life. Gurgen Margaryan died practically instantly as a result of his head's separation from the body, shock caused by loss of blood and blood circulation insufficiency. After throwing the cigarette end on the victim's breast, the accused directed his steps to the room of the second Azerbaijani officer who was awakened by the screams, called him to the room of the killed and showed him the corpse, then came out to the corridor and started searching for the room of the second Armenian, Hayk Makuchyan, in order to kill him as well. At first he went into room 222/А, then 220/A, then he understood that victim Hayk Makuchyan could only be in room 220/B.
Then Ramil Safarov started shouting in Russian, "Open, Armenian, open, we will cut your throats! ... Open, Armenian, open, we will cut your throats!" He tried to open with the handle the door locked by key and after failing to do so, he tried to break the door open with the axe, but he failed again. The Armenian wanted to open the door, but his Lithuanian roommate did not allow him to do so. The attempts of the accused to enter the room from the side were at last stopped by the course participants awakened by the noise and police who came to the site, and at the point of the weapon aimed at him. Only then the accused put aside the axe and surrendered.
IV. Registration and evaluation of evidence
In establishing corpus delicti, the Court based itself upon: partial admission of guilt by the accused Ramil Safarov, testimony given at the hearings by Hayk Makuchyan, Balas Kuti, Joseph Szabo, Zoltan Bakonyi and Attila Demeter; written testimony read at the hearing by Paulus Saulus and Anar Rauf, received at the pre-trial stage; opinion of experts heard at the hearings: Dr Katalin Gaal, Dr Krisztina Yukhas, Dr Ildiko Kovacs, Dr Margarete Rabstein, Dr Ervin Nad and Dr Gabor Kovacs – psychiatrists; Dr Judith Temesvari and Dr Eva Gereg – psychologists; Dr Margarete Soos, Dr Janos Horvath and Dr Gyorgy Dunai – physicians; evidence of crime and written materials submitted by the investigators.
1.Confessions of the accused
The accused was interrogated four times during the pre-trial investigation.
THE FIRST INTERROGATION took place on February 19, 2004 in the presence of appointed defense lawyer and Russian language interpreter. The accused gave a detailed confession during the interrogation that lasted more than three hours. He said that he started to dislike the Armenians in the period of Karabakh war, during which he lost some of his relatives, and during the courses in Budapest, it gradually grew into hatred towards the two Armenians participating in the courses (because of their behavior). Therefore, he decided to kill them, although initially he intended to carry out his plan on a later date – February 26, 2004.
For that purpose, he bought an axe on February 17, 2004 at TESCO store located near Nepstadion ("People's Stadium"). The accused said that after grinding the axe in his room, at dawn, around 5 o'clock, he took the sharpened axe and dagger and entered the room where the victim Gurgen Margaryan was sleeping. He turned on the light and struck with the axe the victim – who was trying to wake up at that moment – in the middle of his forehead, and then struck several more blows in the middle of his neck and chest. In total, he struck 6-7 blows, hitting in not only his head, but also his arm and leg. Then he tried to enter the room where Hayk Makuchyan lived, but the door turned out to be locked. Then, trying to smash the door, he struck it several times with the axe, but failed to open it.
THE SECOND INTERROGATION took place on March 4, 2004, also in the presence of appointed defense lawyer and Russian language interpreter. The interrogated confirmed what he had said at the first interrogation. He admitted that the receipt produced to him coincided with the goods he had bought at TESCO. Among them were the axe and the grindstone.
THE THIRD INTERROGATION took place on May 1, 2004 and authorized lawyer was present at the interrogation. The accused said, for the first time, that although he knew Russian, his knowledge of the language did not allow him to completely understand the Russian language interpreter, so, he asked for an interpreter of Turkish or Azerbaijani languages. He did not say anything significant about the case.
THE FOURTH INTERROGATION took place on May 28, 2004, in the presence of native language interpreter, but again he did not say anything significant about the case, he only repeated for several times that he had not been explained his rights before and that he did not always exactly understand the Russian language interpretation.
At the court hearing, the accused mostly confessed to the crime, however, changing his testimony, he said that he had bought the axe not with the aim of killing the victim, claiming that he did not intend to kill the second Armenian officer and that he had struck the door with the axe not in order to commit another murder after entering the room. The accused said that he did not feel guilty of murder categorized by the court as exceptionally cruel and premeditated, carefully prepared and perpetrated with particular cruelty and with vile motives. However, as before, he admitted that he had axed victim Gurgen Margaryan who was sleeping in his room. In written testimony in court, the accused deviated significantly from the testimony given in the course of the investigation, elaborating on prehistory and, in particular, Karabakh war, events that occurred during the courses in Budapest and behavior of Armenian servicemen.
Based on the testimony of the accused, it is determined beyond any doubt that the accused killed Gurgen Margaryan with the axe he bought. The main task of the judicial investigation was to consider the issue of whether the accused bought the axe with the aim of committing the murder or for another purpose and, depending on it, to determine premeditation of the crime. The issue of whether the accused planned to kill Hayk Makuchyan as well and bought the axe partially for that purpose was also to be considered, as well as whether he tried to get into the victim's locked room for that purpose. The court already indicated that the accused admitted both of these facts in the course of the investigation and the changes he made to the confession were not confirmed during the subsequent detailed elaboration.
Categorization of the circumstances of the crime as crime committed with vile motives and exceptional cruelty is an established fact irrespective of the testimony of the accused. It should be noted in this connection that the references of the accused to the behavior of the Armenian servicemen during the courses are so insignificant (it does not even reach the level of misdemeanor) that it cannot be in the least commensurate with the committed crime.
2. Testimony of witnesses
a./ Testimony of witness Hayk Makuchyan
The witness testified that at the moment of the crime, five o'clock in the morning, he was sleeping in his room, and was awakened by loud jerking of the door handle and blows on the door and simultaneous shouts in Russian with Azerbaijani accent: "Open, Armenian, open, we will cut your throats!" His roommate Paulus Saulus was also awakened by the noise, and did not allow him to open the door. Asked about the relations with the Azerbaijanis, the witness said that he did not feel any conflict either on his part or on the part of his Armenian colleague.
b./ Testimony of witness Balas Kuti
He was the victim's roommate and direct witness of what happened. He testified during the interrogation that on the day of the crime he was awakened early in the morning by the turned-on light and dull sound of blows. He turned in his bed and saw the accused standing by the nearby bed with an axe in his hand, and striking blows on the man lying in the bed. He shouted at the murderer to stop striking, but the accused waggled his head at the witness, saying that he had no problems with him, and continued to strike blows on the victim with the axe. Then the accused lit up a cigarette and the witness left the room and reported what had happened to the officer on duty who for his part called police.
c./ Testimony of witness Joseph Szabo
This witness was the porter on duty of the building where the mentioned incident happened. He was in his guardroom where witness Balas Kuti came to report what had happened, and he immediately reported it to the officer on duty. Then the witness went up to the room where the murder had occurred and saw the victim bloody "beyond recognition."
d./ Testimony of witness Paulus Saulus read at the court hearing
The witness testified that on the day of the crime he was awakened early in the morning, at around five o'clock, by violent jerking of the door handle. His roommate, Hayk Makuchyan, was also awakened by the noise. The person who tried to get into the room was demanding loudly, in Russian and Azerbaijani, that the Armenian walk out the door. The witness also noted that the person who tried to get into the room struck the door with a heavy object. They did not open the door and the witness tried to call for help by his mobile phone.
e./ Testimony of witness Anar Rauf read at the court hearing
The witness testified that he knew nothing about the background of the crime and that he himself did not have any conflicts with the Armenians participating in the courses. On the day of the crime, he was awakened by the accused who entered the room holding a bloody axe in his hand and called him to the room where he had committed the murder. Then the accused directed his steps towards the room of the second Armenian and reaching it, started striking the door with the axe and shouting. The accused was stopped by police who, threatening with weapon, demanded that he threw off the axe and lied down on the floor, after which they put handcuffs on him.
f./ Testimony of witness Zoltan Bakonyi
A participant of the language courses, he was in the same group with the accused. He knows nothing about either the background of the crime or the events leading up to it. As a possible background, he heard from Safarov that he had lost his fiancée in the bombing by the Armenians in Karabakh. Also, the accused hinted that he could not sleep because of the Armenians. The witness also said that he had not noticed any signs pointing to the further events.
g./ Testimony of witness Attila Demeter
At the moment of the events, he worked as deputy head of language courses as part of the Partnership for Peace program, organized at the base of Zrinyi Miklos National Defence University. He said that the Azerbaijani participants had once complained to him about some occurrences that happened during the courses, but he did not remember them complaining exactly about the conduct of the Armenian participants.
Confrontation of confession of the accused and testimony of witnesses
The confession of the accused of murdering Gurgen Margaryan, confirmed by the testimony of direct witness of the crime Balas Kuti and indirectly confirmed by the testimony of Joseph Szabo and Anar Rauf.
The confession of the accused, during the investigation, of his desire to kill Hayk Makuchyan as well, confirmed by the testimony of Hayk Makuchyan and indirectly confirmed by the testimony of Paulus Saulus and Anar Rauf.
3. Conclusion of medical examination
Based on the autopsy protocol given in the investigative materials on pages 159-169, as well as the expert conclusion of the Institute of Legal Medicine № 6671/04, beyond any doubt, a direct causal link is established between the traumas inflicted to Gurgen Margaryan and his death. At least three traumas on the head and three traumas on the neck were discovered, which in themselves were incompatible with life. The conclusion of the Institute of Legal Medicine № 6671/04 also provides expert confirmation that the bloodstains discovered on the confiscated weapon of crime – given that the accused confessed to buying it and using it in the crime – are identical, in all parameters, to the blood of crime victim Gurgen Margaryan.
During the judicial investigation, the court was to not only weigh up the aforementioned circumstances, but to determine the following:
- for what purpose did the accused buy the axe with which he killed Gurgen Margaryan?
- can the Court accept as proof the confession of the accused in Russian?
- was the accused of sound mind while committing the crime?
- did the accused intend to kill the second Armenian as well?
- what is the motivation of the crime?
The answers to these questions and the process of weighing circumstances by the court are given below.
Given the confession of the accused that the crime was premeditated and carefully planned, the court drew the following conclusions:
- decided to kill both Armenian officers participating in the courses together with him;
- decided to fulfill his intention on the day of a certain anniversary of the civil war;
- decided to kill them with an axe;
- accordingly decided to buy an axe and a grindstone;
- decided to kill them early in the morning when they were in a deep sleep;
- decided to kill first the one who was more strongly built.
- decided to kill both Armenian officers participating in the courses together with him; - decided to fulfill his intention on the day of a certain anniversary of the civil war; - decided to kill them with an axe; - accordingly decided to buy an axe and a grindstone; - decided to kill them early in the morning when they were in a deep sleep; - decided to kill first the one who was more strongly built.
THE ACCUSED EXPLAINED: "I CHOSE AN AXE BECAUSE I ALREADY HAVE A KNIFE, , but I decided that I would not commit the murder with knife because if I stab them with knife, they can cry, but if I strike their head with axe, they will lose consciousness and will not be able to call for help. The decision to do it today matured in me only yesterday because, as I already said at the beginning of the interrogation, I planned the murder for the 26th of February. I want to mention that I also bought a grindstone for the axe and for the knife-dagger" (investigative materials of the case of February 19, 2004, page 357, paragraph 1).
"In the evening, I went to TESCO mall to buy food and cigarettes, but when I saw the axe, I bought it immediately. Then I did not know yet what to do with it" (protocol of testimony given by the accused at the interrogation, page 8, paragraph 2, read at the court hearing of November 23, 2004). The accused refused to answer the judge's question why then he bought the axe, if not for killing the victim, as well as refused to answer whether he confirmed his confession read in court and given during the investigation (protocols of court hearings, page 11).
Further, with the exception of his first confession, he failed to give any acceptable answer to the question of why he bought the axe and the grindstone. The purchased items were not necessary for the English language courses and it is even impossible to imagine buying them as a gift or for domestic use. The purchased items can in no way be rated among the original Hungarian souvenirs that cannot be bought in Azerbaijan.
The court did not recognize and did not accept as proof the statements the accused made during expert examinations, that is, the statements are not part of the evidentiary material as they obviously run contrary to the preceding events, and therefore, the court cannot accept them as proof. However, when it came to issues related to the subject of evidentiary material (namely, whether the confession of the accused in Russian can be taken into account, or deep discrepancies in expert assessments), the court needed to examine the statements made before the experts.
The accused said in his testimony before the experts, during the trial (document N 57, page 9-10, April 7, 2005, then document N 86, page 8, November 25, 2005), that he had bought the axe allegedly for the purpose of defense as he was afraid that the Armenians could attack him at night. That fear is unfounded as the investigation established that the accused received no threats of violence, including from the Armenians. The second and third experts, for some reason, were uncritical of the arguments of the accused and even did not compare them with the testimony the accused gave during the investigation or his confession read at the court hearing. The court called the attention of the mentioned experts, who were participating in the legal proceedings, (experts N2 and N3) to their mistake because of which the accused managed to mislead them, which in addition had an impact on them to wrongly determine the psychological state of the accused.
The court stressed that the accused appeared before the court with that new concept of defense only 14 months after the crime and if it had been true, he would have used it from the very beginning. Thereby his second statement pointing to his problems with language is also unacceptable. He never asked for a native language interpreter during the investigation. He himself indicated Russian among the languages he knows and picked a Russian language interpreter for himself; Russian was Azerbaijan's official language when he was a child and his Azerbaijani colleague also speaks Russian. He never said during the investigation and medical examinations that he did not understand something, he never complained about the Russian translation, and never, either in his native language or in any other language, expressed protest about that. Moreover, it cannot be said that the misunderstanding of translation can explain the statement of the accused that he bought the axe to kill the Armenians (his confession at the interrogation) or that he bought the axe for self-defense as the Armenians wanted to kill him (his statement to expert N3).
THE ACCUSED SPOKE ABOUT THE AXE IN HIS TESTIMONY, he drew it with his own hand on page 364 of investigative protocols, a receipt is attached to page 365 of the same protocol showing that indeed an axe was bought for 999 forints, and the accused Ramil Safarov wrote on the receipt in Russian: "I was shown this receipt," which leaves no doubt about his knowledge of Russian. The confiscated axe is indeed on the list of material evidence, under number three (page 453 of investigative protocol).
Moreover, the axe was used in the crime exactly in the way he had planned in advance. In his confession prepared in advance in his native language, Turkish, before the second expert examination (at the court hearing), the accused did not say that the axe was a means of self-defense and he did not want to give any explanations then. Based on this, the court recognized the probative value of the confession in Russian and defined the purchase of the axe as part of the preplanned preparation for committing the crime. He used Russian in his testimony and, according to the witnesses, while committing the murder, which for its part proves that he knows Russian well. Besides, he himself said that he finished his first year at military school in Russian, and as an excellent student, he was sent to study at military school in Turkey where he continued his studies (page 381 of investigative report). That fact proves that he speaks Russian very well, the accused himself chose Russian for the entire investigation and only during the third interrogation (May 10, 2004, investigative documents, page 449), while getting familiarized with the accusation, he expressed complaints. This is because the accused changed his defense tactics during the investigation, which implies that they (the defense lawyer and the accused) post factum tried to call in question the confession of the accused and the conclusion of the first expert examination.
At that stage, in a statement before the court, the defense said that speaking a language and answering professional questions are two different things. Investigative reports – page 306-317 – prove that the accused was not asked any professional questions during the expert examination, the talk was only about his life and impressions. As opposed to the lawyer's opinion, the accused did not only answer "yes" or "no" to these questions, on the contrary, he described the events in detail. The above-mentioned proofs show that what would be illegal is the exclusion of these proofs, unlike what the defense is seeking to do by trying to post factum call in question the translations into Russian. According to the witnesses, everything happened exactly as the accused himself described it during the investigation, as well as told the experts, in Russian. If the interpreter did not make mistakes in general, then why should he have made a mistake regarding only one thing – the purpose for which the accused bought the axe and the grindstone, about which the accused did not give further explanations in any other language later?
According to the witnesses, the accused swore at the Armenians in Russian. He could swear in Russian while committing the crime, so it cannot be taken into account that he could not tell about his actions in the same language.
THE PROSECUTOR WAS INDEED NOT PRESENT AT THE CONFESSION OF THE ACCUSED, but the appointed lawyer was present and he would have been obliged to point to difficulties with the translation if there had been such, but no complaints were expressed. Meanwhile, at that point, the defense raises the question of false translation, regarding which it should be noted that the interpreter had no personal interest in wrong translation of the confession of the accused into Hungarian. According to the investigative protocol – page 355 – the accused said at the very beginning of the investigation that his native language is Azerbaijani and mentioned Russian among the languages he knows, saying, "I understand the interpreter and have no complaints about his personality." What is also unacceptable is the explanation of the accused in his last statement in court that he was allegedly very excited when all witnesses unanimously claimed that he behaved coolly until the end while striking blows on the door and acted very calmly, with the exception of the fact that he swore loudly. If he was unwilling to give confession because of his condition, he could exercise his rights about which he was officially informed – he has the right not to answer the questions. The first expert examination with the participation of Russian language interpreter lasted four hours and a half (page 11 of the protocol), and during such period of time, the expert should have noticed the problems with language, but the expert (Dr Katalin Gaal) gave just the opposite conclusion.
In his last statement, the accused said that he was bothered by the presence of many representatives of the media at the court hearing, and therefore, he did not make a confession. It should be noted that neither the accused nor his authorized lawyer demanded that the court hearing be held behind closed doors, and a considerable number of Azerbaijani media representatives were present at the hearing.
Besides, he prepared his written confession even before the court hearing and he could not know then that the presence of journalists could hinder him. All that matters only from one point of view. The thing is that the accused should not make a confession to claim that all have united against him, in particular:
- although he does not speak Russian, he was provided with a Russian-speaking lawyer;
- the witnesses gave false testimony;
- the experts (who do not think him to be mentally ill) made erroneous conclusions.
The following is concluded from the above:
- to turn down the motion of the defense to exclude from the evidentiary material the confession of the accused in Russian;
- the third expert’s conclusion pointing to divergence between the conclusions of the first and second experts allegedly because of difficulties with translation is unacceptable.
In assessing the conclusions of psychiatric experts, the court is guided by the rule that any doubtful circumstance not supported by facts is interpreted in favor of the accused.
In this case, the defense expressed doubts about the sanity of the accused during the acts. That is why the court conducted an extensive expert investigation involving six psychiatrists. Eventually, not the mental state of the accused, but the conclusions of the second and third experts caused doubt, and according to the court, those conclusions cannot be relied on. The court questioned not the experts' professionalism, but their scrupulousness and preparedness in consideration of this case. It was during the trial, in the course of joint consideration, that it was clearly revealed that the experts made mistakes because they uncritically accepted whatever the accused told them, without comparing what he said in his confession with other investigative materials.
PSYCHIATRIC EXAMINATION WAS CONDUCTED IN THE CASE STILL DURING THE INVESTIGATION ,by psychiatrists Dr Katalin Gaal and Dr Krisztina Yukhas, under number 33/2004 (expert examination N1), which determined that the accused did not have clouding of consciousness, any mental disorder, mental illness, mental defectiveness or personal degradation either at the time of the crime or during the examination by the specialists.
The conclusions of expert examination N1 are as follows: "The accused is a person with disharmonic development of personality, and the psychological examination has revealed that he has, in addition to the low level of intellect, disorderly thinking, stereotyped views, not bad capabilities, but difficulties in their implementation, insufficient self-consciousness, submission to outside influence, hot tempter, no attachments, inability to adapt, lack of self-confidence in decision-making, character of epileptic personality living by his own rules, anti-sociality, controllability, lack of self-control, thirst for self-assertion with obvious psychopathic features."
The psychiatric examination determined that he has a low level of sensitivity, rigid thinking, sensitive experience of the military events of the period of his early childhood, overestimation of his love and patriotism with some megalomania which causes his disposition to military service, and, in addition, his fanatic manners with racist views (enemy-hatred), but without paranoid symptoms, with fixed negative feelings and thoughts (hatred-revenge) which motivated the crime. The personality disorder of the examined is compensated and does not even approximate to pathological thought disorder.
Thereby, the defendant was fully conscious of his actions and their consequences and behaved correspondingly, not being restricted with anything while committing the acts.
During the judicial investigation, a new expert examination was conducted by the proposal of the defense of the accused and the court received a new expert report under N1335/2005, presented by the following experts: psychiatrist Dr Ildiko Kovacs and physician Dr Janos Horvath (expert examination N2). The experts diagnosed the accused with post-traumatic stress disorder, due to which at the moment of action he had a moderately limited perception of the consequences and acted according to his own assessment of the situation.
So, contradictions emerged between the two expert reports, and they failed to be resolved even during their joint hearing in court.
In their additional report under N100/2005 of July 3, 2005, Dr Katalin Gaal and Dr Krisztina Yukhas indicated that the view that the accused has post-traumatic stress disorder is untenable, but even if it were so, it does not mean limited perception of reality, given the fact that the actions were planned.
Expert examination N2 concluded that the accused committed the crime out of fear (page 70 of the protocol).
The experts involved in the first and second expert examinations did not resolve the contradiction regarding the assessments of the state of post-traumatic stress of the accused. Besides, the second expert examination did not answer the question about how the accused, with these symptoms, instead of escaping these feelings and trying to erase them from his memory, arouses them again and even chooses them as the purpose of his life (war, struggle, murder, murder of Armenians). The investigative materials indicate that no threats against the accused have been revealed. Expert N2 uncritically took note of the claims of the accused (that he went to the army to "defend my homeland") that contradict the confession he made during the investigation, when he explained that he went to the army "to kill the Armenians."
The second expert did not bother to ask the accused why at the first interrogation he did not mention the symptoms about which he told the expert (N2), moreover, why in some cases his answers were opposite to those he gave to the previous experts (sleep disturbances, only four hours of sleep as he considers the remaining hours as waste of time).
TAKING NOTE OF THE ABOVE MENTIONED, ACCORDING TO PARAGRAPH 6 §111 of the Law on Criminal Proceedings, the court decided to appoint third expert examination to receive an explanation about the reason of the fundamental difference between the reports of the first two expert examinations and determine whether it is necessary to appoint another expert examination.
ДTo get an answer to these questions, the court turned to SOTE – Semmelweis University of Medicine. SOTE, for its part, appointed psychiatrist Dr Margarete Rabstein and physician Dr Margarete Soos to conduct expert examination on these issues. In their report under N7945/2005, the experts gave the following answers to the questions asked: discrepancies between the expert conclusions are explained partially by translation problems, partially by difference in focus which is explained by difference between the experts' assessments of the motivations of the accused. Besides, they definitely stated that it was necessary to conduct third expert examination.
The experts conducting the last expert examination exceeded their authority by making their own conclusion on the events, something the court did not demand from them. According to them, the accused had clouding of consciousness at the moment of committing the crime, so he had an extremely limited perception of possible consequences of his act, which means that he was unable to act with real perception.
The third expert conclusion was unacceptable as it did not provide answers to any of the questions asked by the court:
- Why did the experts uncritically accept the statements of the accused about the need for self-defense?
- What is the cause of the clouding of consciousness?
- If he had clouding of consciousness, then when did it start and when did it end?
- Was it of psychological nature or is it pathological?
Meanwhile, the third expert examination wrongly assessed the behavior of the accused "I and others," although the accused chose the military service exactly because he wanted to kill the Armenians. He viewed the Armenian soldiers exactly as enemies.
At the hearing on December 15, 2005, the court simultaneously listened to all three groups of experts (with the exception of Dr Katalin Gaal who could not be present at the trial, but constantly kept in touch with her colleagues in court by telephone).
The SOTE experts failed to answer most of the questions asked by the judge or gave evasive answers that did not correspond to the materials of the case (as well as to the testimony of witnesses).
The experts’ disagreements remained unchanged, between expert examinations N1 and N2, N1 and N3, N2 and N3.
Based on this, the fourth expert examination (N4) was appointed, conducted by psychiatrists Dr Ervin Nad and Dr Gabor Kovacs who on February 20, 2006 presented their conclusion under N021/2006.After learning all materials, they thoroughly examined the accused in the presence of a new expert, psychologist, and presented their conclusion to the court. The conclusion stated the following:
- At the moment of action, the accused had clouding of consciousness, however, that does not mean mental pathology, but rather (given the gravity of his action) fits into the existing mental background.
- The accused did not have post-traumatic stress disorder at the moment of action.
- The accused was able to realize the dangerousness of his action and its consequences, that is, he was able to realize and act correspondingly and he was not at all limited in his ability of consciousness while committing the crime.
Identity between the conclusions of experts N1 and N4 regarding the mental state of the accused while committing the action was mentioned at the subsequent court hearing, while expert N2 stuck to his opinion, namely the accused, who was in the state of post-traumatic stress, was in moderately limited mental state of sanity.
THE COURT NOTED THE FOLLOWING ON SPEECHES OF DEFENDERS:
- None of the experts diagnosed the accused with splitting of consciousness (schizophrenia), therefore it is untenable that the lawyer compares it with a literary example (from the book of Zsigmond Móricz Poor People), where a poor man goes to steal not from his creditor, but just from a rich man, being sure that the house is empty. To his surprise, there are an underage child, neighbor girl and an infant in the cradle in the house. In order not to be recognized, he decides to kill the older children and leave the infant alive.
- According to the defense, that example refutes the claim that the accused planned the murder in advance as the accused did not even think of how to leave the scene of action unnoticed as he could be caught and brought to account at the moment of crime or after it. The defender noted in this connection (without thinking too much) that therefore, the accused is incapable and the court should agree with the conclusions of expert examinations N2 and N3.
However, the accused himself explained this:
- "I do declare that my Azerbaijani fellow did not know anything about my plan. Even though I didn't tell him what I wanted to do, because he has serious perspectives, aims, goals, I didn't want to ruin his life as well. It can be imagined that if I didn't have done this than in another time in another place I would have done the same. If there would have been more Armenians at school and if I would have the possibility I would not only try to kill two persons, but rather I would commit the crime on all. However this was the first and I didn't have the chance to prepare more punctually to commit this action." Based on this, it can be concluded that the accused did not care about disclosure, that is the issue of salvation as he thought that he was doing a "heroic deed." This supposition is not baseless as this is exactly how his act is assessed by some circles. This is indicated by the fact that the Azerbaijan Democratic Party (formerly known as the Grey Wolves Party) named Ramil Safarov Man of the Year in 2005. Party's chairman Hamidov said, "Ramil Safarov did well killing Gurgen Margaryan," as well as, "There is now one less Gurgen." Ramil Safarov was granted honorary membership of that party (http://www.radio.hu/index.php?cikk id=171824, 06.04.2006). The link was attached to the protocol at the request of the defense of the victim on April 13, 2006.
- ACCORDING TO PARAGRAPH 8 §108 OF THE LAW ON CODE OF CRIMINAL PROCEDURE, the court has no right to assess statement to experts as confession of the crime. But in case the assessment of the mental state of the accused is subject and part of the proof of his defense, the court has the right to take into consideration the statement of the accused during the examination by experts as it is the basis of expert report. The accused, Ramil Safarov, said about his deed that he felt "joy" because he managed to kill one Armenian as this was exactly what he taught his soldiers: "…no matter where, the Armenians must be killed. It has always been this way, it doesn't matter if they kill 1,000 people, but if someone kills at least one of them, a terrible scandal will burst here, among the Hungarians." So, the accused was not absolutely worried about the danger of disclosure and did not even think of hiding and escaping punishment as he does not think that the murder of an Armenian (i.e. not people in general, but by national belonging) is a crime. The defense of the accused did not take into consideration that circumstance when it tried to exclude the accusation of murder planned in advance, and made a wrong conclusion about the mental confusion of the accused.
- The above mentioned is also confirmed by the testimony of the second Azerbaijani, witness Anar Rauf, whom the accused told the following right after the crime, "When you go home, tell others that 'I did what I had to do' and let my people not be nervous" (investigative protocol, page 271).
- The defense tried to challenge the court's right to take any position while weighing the contradictory conclusions of experts in terms of accepting any of them as evidentiary argument, to be more precise, the defense, understandably reserving the right to choose the most convenient of them from that point of view, at the same time presented itself as the last instance in detecting special expert matters, basing its opinion on quotations from special psychiatric literature, thus trying to substantiate the expert conclusion most beneficial to the accused. In contrast to that, the court is guided in its decisions by special juridical literature, according to which, court's compulsory appeal to expert knowledge does not exclude and does not violate the principle of free argumentation as in the case under review for compulsory cases the law establishes only ways of obtaining evidence, not their unquestionable acceptance. According to the above mentioned, the judiciary is no way restricted by anything in its assessment of expert opinion (Code of Criminal Procedure, edited by Mihai Tot, HVG-ORAC, page 136, 2003). "Opinion of expert examination – determination of facts and subsequent conclusions – is on the whole subject of assessment, ultimately exactly judicial assessment, just like any other evidence. From this point of view, peculiarities of expert conclusions reflecting special knowledge cannot be just dropped with references to life experience and their non-coincidence with everyday observations. At best, they can arouse doubts of the court regarding their rightness and following the respective procedure, that circumstance may become a factor for applying to another expert. However, there is no hindrance for the court, scrupulously weighing the contradictory expert conclusions, based on its experience and convictions, to take one of them as a basis and brush aside the other" (Code of Criminal Procedure, HVG-ORAC, page 392).
- THE DEFENSE WRONGLY INTERPRETED THE RULES ON ACTIVITY OF SUPERVISING AUTHORITIES, described in §111 of Code of Criminal Procedure. First of all, it should be noted that it has not been stopped and the new rules do not stipulate that their successors should be involved in the process, just the opposite, they stipulate that a third expert should be involved in the case. "Earlier, the authorities called (in the full sense of the word) to supervise did not make their own expert conclusion, but only in cases of contradictory conclusions they answered the question: which of them is more true from point of view of scientific content and validity, according to requirements to special expert knowledge? The current law, §111 paragraph (5) and (6) established a new rule which is not so much different from it. If serious and deep differences appear between different expert conclusions in a key issue for resolution of litigation which do not clear up even after use of conventional methods, namely request for clarification, provision of additional explanations, joint judicial consideration of contradictions with all experts involved in the case, the legal authority conducting the case (investigating authority, prosecutor's office and especially court) can propose or officially appoint a new expert examination.
According to paragraphs (1), (3), (4) of the same law, the task of the expert appointed in this way, unlike the experts appointed earlier, is not to conduct his own investigation in that special issue and give another conclusion, but, exclusively with the use of materials of previous conclusions, to conduct a quasi-control inspection to explain the essence and cause of emergence of contradictions; whether it is necessary to demand additional explanations on any of these expert examinations and on what part; whether it is necessary to involve another expert or expert of another competence in the expert examination in this case. The rules described in paragraph (5) definitely determine the control functions of the "third" expert appointed in this way, at the same time, the purpose of such conclusion is to help the court in issues requiring professional knowledge, i.e. which of the conclusions is acceptable or on which of them the continuation of cooperation with the court is substantiated.
So, the task of such "third" expert having control functions is not to stop, with his conclusion, the continuation of the process of expert evidence, but to help the legal authority (in this case court), with its logical argumentation, to continue considering expert conclusions until it becomes fully confident regarding the issue. In this case, the advantage of the new edition of Code of Criminal Procedure is undoubted, which in principle eliminates thoroughly hardened rules not contradicting the principle of free evidence, based on which the conclusion of the higher supervising authority was of compulsory nature.
From this point of view, the supervisory expert examination of expert conclusions for unresolved expert contradictions is not compulsory, but is an opportunity for consistent realization of the "principle of free evidence" and quasi-higher supervisory conclusion received in this way in no way restricts the legal authority (court) in its decisions (commentary to Code of Criminal Procedure, HVG-ORAC, page 416). In this case, the court involved the third expert for examination of expert conclusions of officially appointed specialists, but did not accept him because of superficial and baseless conclusions, as a result of which it became necessary to bring new specialists into the process.
- THE MOTION OF THE DEFENSE TO INVOLVE IN THE PROCESS ETT (PSYCHIATRIC SOCIETY) was rejected by the court as the court has no reason to hear the opinion of that body, especially allow that body to immediately set questions to the sides. Back under the previous Code of Criminal Procedure, ETT's involvement in the process caused unnecessary difficulties and that forced the Supreme Court to put into practice invitation of independent experts. That practice ended with the case of ЕВН 2002 .739., with the Supreme Court ruling the following: "Despite the active evidential activity of the first instance court, the Supreme Court does not consider justified the finding that the accused is of sound mind, made by the court in terms of criminal liability, based on the decisive conclusion of ETT IB acting as higher supervisory instance. Based on the "principle of free evidence," expert opinion represents only one of the numerous proofs and its assessment, like any other conclusion by specialists, is within the court's authority. In the assessment of special issues, only a scientifically recognized, convincing, comprehensive conclusion excluding any kind of contradiction can be accepted by the court as proof. In the case considered, the first instance court accepted the opinion of ETT IB without dispelling the doubts about the mental state of the accused.
- Most probably, the statement of the defense that expert N4 accepted the conclusions of expert N1 without conducting an independent expert examination is based on a misunderstanding. It has been documented that expert N4 conducted the examination of the accused on February 9, 2006 at the Central Military Hospital (expert conclusion N4, page 16-23), by the same experts, and the rest of the psychological tests were also conducted there (TAT, Szondi, MMPI, Lusch). So, the expert did not say that he did not conduct an expert examination, he only stressed that the conclusion of the first expert examination should be considered more reliable as it was conducted immediately after the crime and completely coincides with the testimony of the accused. Besides, then the accused still did not have time (weeks, months, years) to think over what happened and as a result, the events are "inevitably copied."
- Another statement of the defense about fundamental contradictions between conclusions of experts N1 and N4, as experts N1 do not indicate clouding of consciousness, is also based on a misunderstanding. Expert N1 explained at the court hearing that detection of clouding of consciousness emerging on integral psychological basis is outside the competence of psychiatric experts and the court itself has to establish, by weighing and assessing it together with other proofs, whether or not the accused was in that state. Expert N4 had to provide explanations to the court regarding the conclusion of expert N3 who wrongly assumed clouding of consciousness on pathological basis, which expert N4 did according to court decision. No contradictions emerged between experts N1 and N4 at the court hearing regarding clouding of consciousness on integral psychological basis. Based on the foregoing, opinions of experts N1 and N4 were consonant and both expert groups agreed that the accused was capable of realizing the dangerousness of his action, so he acted consciously, i.e. the decision to commit murder (and the subsequent acceptance of responsibility) as well as preparation for it were made by him.
In his last statement, the accused said that Dr Katalin Gaal proposed expert N4 to the court and therefore, their conclusion must not be taken into account.
IN THIS CONNECTION, THE COURT INDICATES THE FOLLOWING:
- expert N3 proposed Dr Katalin Gaal as the best specialist in post-traumatic stress disorder;
- however, the court appointed not her but an expert from SOTE;
- when it became necessary to conduct fourth expert examination, the court applied to several specialists from the province and various district institutions of Budapest, but they all refused pleading being busy, after which expert N4 was appointed;
- Dr Katalin Gaal proposed expert N4, but the defense was informed about it and did not complain to the court in this connection;
- the fact that Dr Katalin Gaal proposed expert N4 does not mean that he made a false or wrong expert conclusion.
The court also had to weigh whether the accused really wanted to kill the second Armenian participant of the courses as well. That fact is proved by:
- confession of the accused during the investigation;
- testimony of witness Hayk Makuchyan who heard death threats against himself;
- testimony of witness Paulus Saulus who confirms that the accused demanded that the Armenian officer open the door;
- testimony of Azerbaijani officer Anar Rauf who confirms that the accused struck the door with the axe.
Comparing the above, it can be said that the fact that the accused tried to break into the room of second Armenian officer holding a bloody axe in his hand and threatening to kill him cannot be assessed as anything other than direct intention to kill him as well. The crime started not with that, it started with the accused buying an axe and a grindstone, this was the initial stage of preparation of further actions.
Based on the testimony of the last witness, it was established that the actions of the accused were stopped by police (not by a kind of voluntary abandonment).
The court does not want to essentially consider the issue that he could kill the Armenian in another place as well, and the explanations that his actions were caused by clouding of consciousness, which, for some reason, emerged and took place at the time of the crime only. Quite the contrary, it is a fact that the stay at the military hotel really gave the accused an exclusive opportunity to easily fulfill the crime he had planned (to chop off the head of sleeping man, especially Armenian officer). It is also a fact that if the accused did not speed up the day of the murder, he would have time to find out in which room the second Armenian lived and whether the door was locked for the night, and in that case, he could obtain a spare key.
Regarding the motives of the crime, the accused says clearly:
"My job is to kill all [Armenians], because until they live we will suffer." (paragraph 5, page 359).
V. Legal qualification of the crime
Preparation for the murder was made with the purchase of the necessary subjects – axe and grindstone, i.e. preparation started not at the moment when he killed Gurgen Margaryan and tried to get into the room of Hayk Makuchyan and struck the door of his room with the axe (however, these actions are also classified as preparatory). The fulfillment of the plan was complicated and foiled by the fact that Ramil Safarov shifted the plan to a closer date and a mistake crept into his calculations as preparing for the actions, he did not find out exactly where Hayk Makuchyan lived and therefore, searching for him, he opened the doors of several rooms and finally reached the door of the room where the second victim lived, but the door turned out to be locked. It is not typical of military dormitory and is evidenced by the fact that he got into other rooms without difficulty. Only police that came to the scene stopped his further actions.
Facts established that on learning that two Armenians participated in the courses, the accused decided to kill them with an axe on a certain day at night in the room when they would be sleeping. Pre-planning of the crime is not refuted by the fact that he committed the murder earlier than the planned day. It should be noted that this circumstance taken out of the context of the general plan of murder preparation misled expert Dr Ildiko Kovacs and turned her to the wrong way (PTS), allegedly starting from that moment, the accused was in clouded consciousness and his actions were only guided by the fulfillment of the plan, and only because of the shortcomings in the planning he failed to murder the second Armenian and only the closed door caused violent reaction of the accused – who before that acted coolly and according to plan – with axe blows on the door, shouting and swearing.
The accused committed the murder with vile motives and exclusively because of the Armenian nationality of the victims. He did not know the victims before, the offences mentioned in his testimony were insignificant and his complaint to one of the leaders of the courses was unrelated to the behavior of the Armenians, it concerned the general conversation between the participants of the courses about the Muslims, terror and Islam. So, he did not even consider revenge on this basis (attitude to the Muslims), on the contrary, the murder was committed exclusively because of the ethnicity of the victims, which determines the vile motives of the committed murder.
An exceptionally atrocious murder was committed and it was perpetrated with particular cruelty. The beheading of the victim points to the high degree of inhumanity of the accused, which was aggravated by the cigarette end thrown on the murdered victim. Such conduct indicates that the accused lost his human face and killed a human ruthlessly, mercilessly and without compassion, at the same time swearing at the victim.
Based on the above, the accused committed acts which, according to paragraph 1 §166 of Criminal Code and points c) and d) of paragraph 2 of the same section, are qualified as preplanned murder committed with exceptional cruelty and with vile motives against Gurgen Margaryan and in addition to it, according to paragraph 3 §166 of Criminal Code, attempted murder of Hayk Makuchyan.
VI. Determination of punishment
Pursuant to paragraph (1) §12, taking into consideration paragraphs (1) and (2) §85 of Criminal Code, the court set cumulative punishment for the two crimes committed by the accused. For a serious crime (murder) the law sets possible punishment of 10 to 15 years in prison or life imprisonment. First of all, the court had to determine the validity of both unlimited punishment and punishment with a specific term.
In case of specific term, according to paragraph (3) §85 of Criminal Code, a cumulative punishment should be set. In this case, the lower limit of punishment is 10 years and the upper limit – total term for the qualified murder – is maximum 15 years plus 5 years for the preparation of the murder, i.e. a total of 20 years.
TO DETERMINE THE PUNISHMENT, THE COURT TOOK INTO ACCOUNT PARAGRAPH (1) §83 OF CRIMINAL CODE AND DETERMINED THEIR BASIC PRINCIPLES.
According to the above, the law has to assess the following:
- danger of the committed crime for society;
- degree of guilt;
- other mitigating and aggravating circumstances.
There was absolutely no compassion and repentance in the confession of the accused. There was no single word of pity for the brutally killed Armenian soldier and his relatives. He absolutely did not feel pangs of conscience or remorse about his act and he did not say that he would not commit such acts in the future, quite the contrary, he stressed that if he failed to do it in that place, he would commit that crime in another place and at another time. That feature hidden in his personality poses high danger for society.
Both crimes: the preplanned and implemented; and the second, stopped during the preparation, were committed by the accused with the highest degree of seriousness of the crime.
Thereafter the court gave the following assessment:
- the actions of the accused are qualified three times (repeatedly) in the same point of the accusation, meaning that – even in case of one qualified circumstance/crime (even without consideration of actions/crimes combined with it) – it is in itself punishable by indefinite imprisonment;
- cumulative crime;
- he foully attacked victim Gurgen Margaryan who was sleeping and could not defend himself and offer resistance;
- he committed attempted murder against victim Hayk Makuchyan.
- he has no previous conviction;
- he is a foreigner (language barrier and difficulties in communication with his relatives), which will cause big problems for the authorities in charge of execution of the sentence;
- partial confession of the accused. Partial confession means that the accused did not completely admit to even planning the murder, although it is confirmed by many witnesses.
To sum up, to achieve the purpose of punishment, the court considers it justified, according to §37 of Criminal Code, to impose indefinite punishment (life imprisonment).
Therefore, according to paragraphs (1) and (3) §40 of Criminal Code, the court sentences the accused to life imprisonment in strict-regime prison colony based on paragraph (1) §42 of Criminal Code.
According to point c) paragraph (2) §33, punishment for qualified murder has no time limitation. Given the fact that the court did not rule out the possibility of condition release as a mitigating condition of punishment, the possibility of such decision is determined for a term of no earlier than 30 years in prison.
The time spent in pre-trial detention is included according to paragraphs (1) and (2) §99 of Criminal Code.
Despite the fact that, given the seriousness of the crime, it is not desirable that the accused should stay in the country, the court is not in favor of the prosecutor's motion to extradite the accused. According to the rules detailed in §2 of Criminal Code, the court is guided by laws functioning not at the time of the commission of the acts/crime, but at the time when the court makes the decision, if they are more favorable from the point of view of the accused.
The law in force at the moment, in case of murder, does not allow to extradite the accused from Hungary.
According to the above, based on paragraph (1) and (4) §61 of Criminal Code, the court imposes as accessory punishment (after serving the main sentence) the ban to visit Hungary for term determined by the court.
By choosing the gravest punishment provided by the Criminal Code of Hungary, the court took into account the following. Murder of a human in peaceful time is not heroism but criminal offence. Murder of a sleeping man is an exceptionally mean and blameworthy crime, and the descent of a person does not matter, whether he is Armenian or representative of any other nationality.
Therefore, the conclusion of expert examination N3 that the discrepancies between the conclusions of expert examinations N1 and N2 are explained by the fact that the experts allegedly differently assessed the culture of guests from different cultural environments is unacceptable. Human life is a universal value and any culture is equally obliged to defend it in XXI century, and those encroaching on it deserve strong condemnation.
In this case, the accused took the life of a young man who was a mere child during the civil war. During the trial, the accused did not even think of pitying his victim, he was rather interested in pitying himself and he already showed himself not as a hero, but on the contrary, he tried to behave so that he would be considered mad with the purpose and hope of getting a relatively short term and then becoming a hero again. I do not argue that he is also a victim to some extent as the hostility between the two peoples went so far that some consider that someone's different descent is an adequate cause for killing him. These are good morals (!), but it is punishable under the Hungarian laws. It is a crime and in this case, it should be punished most strictly.
VII. Other orders
To the request on civil law made by Gurgen Margaryan's legal representative, according to paragraph (1) §335 of Code of Criminal Procedure, the court proposed that it should be done in the alternative legal way due to the fact that the consideration of the request would drag out the decision on the main issue.
ON CONFISCATION OF ITEMS USED IN THE CRIME, the court's order was based on point a) paragraph (1) §77 of Criminal Code.
According to paragraphs (1), (2) and (8) §155 of Code of Criminal Procedure, the court ruled: to cancel the confiscation of the rest of the items seized during the investigation, to return the items belonging to separate persons, to destroy the rest of the items having no value.
The court turned down the appeal of the defense of the accused to appoint a new psychiatric examination within a special commission to determine whether Ramil Safarov is of sound mind. Referring to the previous expert examinations discussed during the trial, the court considered the proposal unnecessary and explained its position during the process of weighing the evidence presented.
It also turned down the motion of the defense to delay the court hearing because of the absence of witness Anar Rauf until his full recovery as the process had already been delayed several times for that reason. The witness' testimony, given during the pre-trial investigation, has already been used by the court, and therefore, there is no need to interrogate the witness in the foreign court in the country where he gets medical treatment. The mentioned witness, as it is, could not answer specific questions (for what purpose the accused bought the axe, whether he planned to kill the Armenian officers, whether the accused is of sound mind, and so on).
Having determined the criminal liability of the accused, based on paragraph (1) §338 of Code of Criminal Procedure, the court obliges the accused to compensate the legal costs, and the state should cover the costs of translation from Hungarian throughout the trial, based on paragraph (2) §339 of Code of Criminal Procedure.
Budapest, 2006, April 13
President of the court Dr Andras Vaskuti
Assessors Almasi Sandorne, Dr Tiborczi Szabo
Translation from Hungarian into Russian by Edward BADALYAN
In the original language in the PDF format
Prepared by Marina GRIGORYAN