Introduction
On December 5, 2017, the Council of Europe's Committee of Ministers (Committee) issued an interim resolution concerning the European Court of Human Rights case of Ilgar Mammadov v. Azerbaijan.Footnote 1 In this resolution, the Committee, for the first time ever, launched infringement proceedings against a member state of the European Convention of Human Rights (Convention).
Background
The member states of the Convention have to abide by the judgments of the European Court of Human Rights (Court) in any case to which they are parties.Footnote 2 Thus, if the Court finds that a member state has violated the Convention, the state has to comply with the judgment. The execution of the judgments is supervised by the CommitteeFootnote 3—a political body made up of diplomats from each member state of the Council of Europe.Footnote 4 The Committee has very limited means to put pressure on a member state to implement a judgment. Besides adopting strongly worded resolutions urging a state to comply with the judgment, the Committee can only threaten the state with suspension of voting rights or expulsion from the Council of Europe (an ultima ratio).
Closer supervision and further means of pressure are certainly necessary. Although the European human rights system has always had to deal with implementation obstacles to a varied degree, a number of high-profile execution problems have emerged in the last couple of years. Some of the most prominent cases are the United Kingdom's decade-long refusal to implement the Hirst judgment and guarantee prisoners the right to voteFootnote 5 and Russia's constitutional court's decision to refuse the implementation of judgments contradicting Russian constitutional law.Footnote 6 Both cases led to fear within the Council of Europe that these states might become negative role models.
Since 2010, the Committee has been able to launch so-called infringement proceedings. These proceedings were introduced to provide the Committee with additional means of pressure.Footnote 7 Now, if the Committee considers that a state refuses to abide by a judgment, it can refer the question whether the state has failed to fulfill its obligation to the Court.Footnote 8 The members of the Committee, however, had either lacked the political will to name and shame a fellow member state or never reached the necessary two-thirds majority.
The Resolution
The Interim Resolution CM/ResDH(2017)429 in the Mammadov case marks a new step in the history of the Committee.
In the 2014 judgment Ilgar Mammadov v. Azerbaijan, the Court found that the arrest and pre-trial detention of opposition leader Ilgar Mammadov violated a number of articles of the Convention and were mostly politically motivated.Footnote 9 A second judgment by the Court in 2016 then found that the criminal proceedings were in violation of the Convention as well.Footnote 10 At the time of his arrest, Mammadov was in the Azerbaijan town of Ismayilli to witness ongoing protests and blog about the events. Mammadov has remained in prison since his arrest in 2013.
In several previous interim resolutions, the Committee had demanded that the Azerbaijan authorities execute the Court's judgments and release Mammadov from prison. The resolution on October 25, 2017, was a last warning and formal notice to the Azerbaijan government that the Committee intended to launch infringement proceedings.Footnote 11 Subsequently, the Azerbaijan government informed the Committee that it considered the judgments implemented and did not find additional measures to be necessary.Footnote 12
In the interim resolution of December 5, 2017, the Committee especially emphasized three aspects of the case:
First, the Committee repeatedly pointed out the underlying violation of Article 18 of the Convention (in conjunction with Article 5) in the Mammadov case and thus highlighted the particular political context of Mammadov's case.Footnote 13 Article 18 of the Convention forbids states to restrict a right in the Convention for any reason other than those allowed under the Convention. In other words, the provision ensures that states act “in good faith” and not for hidden purposes.Footnote 14 By pointing out this particular violation, the Committee referred to the Court's findings that the actual purpose of Mammadov's arrest and pre-trial detention “was to silence or punish [him] for criticizing the Government and attempting to disseminate what he believed was the true information that the Government were trying to hide.”Footnote 15
Second, the Committee reminded the Azerbaijan government that the payment of just satisfaction alone is not sufficient to execute a judgment.Footnote 16 The Committee recalled that full execution of a judgment entails the payment of just satisfaction and the adoption of individual and general measures. Execution should indeed, according the Court's well-established case law, make reparation for the consequences of the breach in such a way as to restore, as far as possible, the situation existing before the breach (restitutio in integrum).Footnote 17 The Committee makes clear that the only way to restore the situation before the breach, i.e., before the arrest, detention, and criminal proceedings, is to release Mammadov from prison immediately and unconditionally.
Third, the Committee recalled that Mr. Mammadov had been in prison—due to unfounded and unfair criminal proceedings—for over three years.Footnote 18
These three points informed the Committee's decision to launch the proceedings. Since Mammadov is a very particular case, it will probably not serve as a precedent for further infringement proceedings.
Effect
The resolution refers the supervision of the execution of Mammadov to the Court. The Court will have to clarify whether Azerbaijan has indeed refused to fully execute the judgment. But even if the Court follows the Committee's legal evaluation, Azerbaijan would not have to face legal sanctions. According to the Convention text, the Court would refer the case back to the Committee again for their consideration.Footnote 19 And the Committee would put it back on its agenda.
Conclusion
This resolution is certainly a historic step in the European human rights system. However, it remains to be seen whether the Committee's step will have consequences for enforcement procedures beyond this singular case.
Still, it will be interesting to see how the Court deals with this task, whether more infringement proceedings will follow in the near future and change the supervision process, and, of course, whether the proceedings at hand will lead to Mammadov's release from prison.
This text was reproduced and reformatted from the text available at the International Court of Justice website (visited March 14, 2018), http://www.icj-cij.org/files/case-related/163/163-20161207-ORD-01-00-EN.pdf.
MINISTERS' DEPUTIES Resolutions CM/ResDH(2017)429 7 December 2017
Interim Resolution CM/ResDH(2017)429
Execution of the judgment of the European Court of Human Rights
Ilgar Mammadov against Azerbaijan
(Adopted by the Committee of Ministers on 5 December 2017 at the 1302nd meeting of the Ministers' Deputies).
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),
Recalling its Interim Resolution CM/ResDH(2017)379 serving formal notice on the Republic of Azerbaijan of its intention, at its 1302nd meeting (DH) on 5 December 2017, to refer to the Court, in accordance with Article 46 § 4 of the Convention, the question whether the Republic of Azerbaijan has failed to fulfil its obligation under Article 46 § 1 to abide by the Court's judgment of 22 May 2014 in the Ilgar Mammadov case, and inviting the Republic of Azerbaijan to submit in concise form its view on this question by 29 November 2017 at the latest;
Recalling anew
a. that in its above-mentioned judgment, the Court found not only a violation of Article 5 § 1 of the Convention, as no facts or information had been produced giving rise to a suspicion justifying the bringing of charges against the applicant or his arrest and pre-trial detention, but also a violation of Article 18 taken in conjunction with Article 5, as the actual purpose of these measures was to silence or punish him for criticising the government;
b. the respondent State's obligation, under Article 46 § 1 of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, in addition to the payment of the just satisfaction awarded by the Court, the adoption by the authorities of the respondent State, where required, of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum;
c. the Committee's call, at its first examination on 4 December 2014, of the individual measures required in the light of the above judgment to ensure the applicant's release without delay;
d. the Committee's numerous subsequent decisions and interim resolutions stressing the fundamental flaws in the criminal proceedings revealed by the Court's conclusions under Article 18 combined with Article 5 of the Convention and calling for the applicant's immediate and unconditional release;
e. that the criminal proceedings against the applicant concluded on 18 November 2016 before the Supreme Court without the consequences of the violations found by the European Court having been drawn, in particular, that of Article 18 taken in conjunction with Article 5 of the Convention;
f. that, over three years since the Court's judgment became final, the applicant remains in detention on the basis of the flawed criminal proceedings;
Considers that, in these circumstances, by not having ensured the applicant's unconditional release, the Republic of Azerbaijan refuses to abide by the final judgment of the Court;
Decides to refer to the Court, in accordance with Article 46 § 4 of the Convention, the question whether the Republic of Azerbaijan has failed to fulfil its obligation under Article 46 § 1;
The concise views of the Republic of Azerbaijan on the question raised before the Court are appended hereto:
Appendix: Views of the Republic of Azerbaijan
“INTRODUCTION
1. At their 1298th meeting of 25 October 2017, the Ministers' Deputies adopted Interim Resolution CM/ResDH(2017)379, in which the Committee served formal notice on the Republic of Azerbaijan of its intention, at its 1302nd meeting (DH) on 5 December 2017, to refer to the Court, in accordance with Article 46 § 4 of the Convention, the question whether the Republic of Azerbaijan has failed to fulfil its obligation under Article 46 § 1 of the Convention arising following the Court's judgment in Mammadov v. Azerbaijan (no.15172/13, 22 May 2014).
2. In response to the Committee's invitation extended in the Deputies' above Interim Resolution, the Government of the Republic of Azerbaijan submit their views concerning the question of execution of the Court's judgment in the above case.
THE FACTS
3. On 4 February 2013 the applicant was charged with criminal offences under Articles 233 (organising or actively participating in actions causing a breach of public order) and 315.2 (resistance to or violence against public officials, posing a threat to their life or health) of the Criminal Code, and arrested by the decision of the Nasimi District Court. On 30 April 2013 the applicant was charged under Articles 220.1 (mass disorder) and 315.2 of the Criminal Code.
4. On 17 March 2014 the Sheki Court for Serious Crimes convicted the applicant under Articles 220.1 and 315.2 of the Criminal Code and sentenced him to seven years' imprisonment.
5. On 24 September 2014 the Sheki Court of Appeal upheld the judgment of the court of first instance. Article 407.2 of the Criminal Code of the Republic of Azerbaijan provides that the judgment shall be final immediately after delivery of the decision of the Court of Appeal. Accordingly, as from 24 September 2014, the applicant was not under the pre-trial detention; he was serving his sentence.
6. On 22 May 2014 the Court (First Section) adopted judgment, in which it found violation of Article 5 §§ 1 (c) and 4, Article 6 § 2 of the Convention, and Article 18 of the Convention taken in conjunction with Article 5 of the Convention. This judgment was final on 13 October 2014.
THE COMMITTEE OF MINISTERS' PROCEDURES FOR SUPERVISION OF EXECUTION OF THE COURT'S JUDGMENTS
7. Rule 6 of the CM Rules reads as follows:
“1. When, in a judgment transmitted to the Committee of Ministers in accordance with Article 46, paragraph 2, of the Convention, the Court has decided that there has been a violation of the Convention or its protocols and/or has awarded just satisfaction to the injured party under Article 41 of the Convention, the Committee shall invite the High Contracting Party concerned to inform it of the measures which the High Contracting Party has taken or intends to take in consequence of the judgment, having regard to its obligation to abide by it under Article 46, paragraph 1, of the Convention.
2. When supervising the execution of a judgment by the High Contracting Party concerned, pursuant to Article 46, paragraph 2, of the Convention, the Committee of Ministers shall examine:
a. whether any just satisfaction awarded by the Court has been paid, including as the case may be, default interest; and
b. if required, and taking into account the discretion of the High Contracting Party concerned to choose the means necessary to comply with the judgment, whether:
i. individual measures have been taken to ensure that the violation has ceased and that the injured party is put, as far as possible, in the same situation as that party enjoyed prior to the violation of the Convention;
ii. general measures have been adopted, preventing new violations similar to that or those found or putting an end to continuing violations.”
INDIVIDUAL MEASURES ADOPTED
8. On 25 December 2014 a total amount of 22,000 euros was paid to the applicant in respect of non-pecuniary damage and costs and expenses.
9. By its decision of 13 October 2015, the Supreme Court quashed the Sheki Court of Appeal's judgment of 24 September 2014, finding that the lower court's rejection of the applicant's requests for examination of additional witnesses and other evidence had been in breach of the domestic procedural rules and the requirements of Article 6 of the Convention. The case was remitted to the Sheki Court of Appeal for a new examination in compliance with the domestic procedural rules and the Convention requirements.
10. On 29 April 2016 the Sheki Court of Appeal finalized examination of the applicant's case and upheld the judgment of the Sheki Court for Serious Crimes of 17 March 2014. It, particularly carefully addressed the Court's conclusions drawn in the present judgment and remedied the deficiencies found in the proceedings leading to the applicant's conviction.
GENERAL MEASURES
11. In December 2015, under Article 52 of the Convention, the Secretary General of the Council of Europe launched an inquiry to find out how the domestic law in any member state makes sure that the convention is properly implemented.
12. On 11 January 2017 the mission set up by the Secretary General visited Azerbaijan and held discussions, with judicial, legislative and executive authorities, to cover all issues related to execution of the Court's judgment in the applicant's case. Authorities have confirmed their readiness to examine all avenues suggested by the mission to further execute the Court's judgment.
13. On 10 February 2017, President of the Republic of Azerbaijan signed Executive Order “On improvement of operation of penitentiary, humanization of penal policies and extension of application of alternative sanctions and non-custodial procedural measures of restraint”.
14. Executive Order covered a number of questions raised by the Court in its judgment, including existence of reasonable suspicion of having committed an offence at the time of arrest and consideration of alternative measures of restraint by relevant authorities.
15. Further humanisation of penal policies in Azerbaijan was listed among the aims of the document. It said that, in application of measures of restraint by investigation authorities and courts, provisions of criminal procedure law concerning grounds for arrest should be strictly complied with, and the level of application of alternative sanctions and measures of procedural compulsion extended to attain aims of punishment and of measure of restraint through non-custodial means.
16. The President of the Republic of Azerbaijan recommended to the Supreme Court, the General Prosecutor's Office and instructed the Ministry of Justice with elaboration of the draft laws concerning decriminalisation of certain crimes; provision of the sentences alternative to imprisonment; development of grounds for non-custodial measures of restraint and sentences alternative to imprisonment; wider application of institutions of substitution of remainder of imprisonment by lighter punishment, parole and suspended sentence; extension of cases of application of measures of restraint alternative to arrest; simplification of rules for amendment of arrest by alternative measures of restraint; and further limitation of grounds for arrest for low-risk or less serious crimes.
17. The President also recommended to the Office of the Prosecutor General to start with examination of alternative measures of restraint when considering motions for arrest.
18. It was also recommended to the courts that they examine the existence of reasonable suspicions of individual's having committed an offence and grounds for arrest, when deciding on measure of restraint, and arguments in favour of alternative measures.
19. According to Executive Oder, the Supreme Court shall hold continued analysis of case law of the courts concerning application of arrest and imposition of imprisonment.
20. On 20 October 2017 the Milli Medjlis of the Republic of Azerbaijan adopted the Law on Amendments to the Criminal Code, amending more than three hundred provisions of the criminal legislation. Along with decriminalization of certain acts, the law provides for introduction of sanctions alternative to imprisonment and more simplified rules concerning early release. It shall enter into force on 1 December 2017. The law provides for inclusion of Article 76.3.1-1 opening possibility of conditional release after serving of two-thirds of the term of imprisonment imposed for commitment of serious crimes. Further to this amendment, the applicant would be eligible for conditional release as from 4 August 2017.
21. On 1 December 2017 the Parliament shall also examine, in the third reading, amendments to the Code of Criminal Procedure and the Penal Code, which are in line with the recommendations addressed in the Presidential Decree.
22. In the meantime, following the recommendations given to the investigation and judicial authorities, the number of detainees held in the pretrial detention facilities continues to decrease: the number of detainees held in pretrial detention facilities decreased by 25% in nine months. In addition, the number of judicial decisions concerning the arrest of individuals decreased by 24% in in comparison to 2016.
23. In sum, having regard to absence of the Court's any ruling to secure the applicant's immediate release and the discretion of the High Contracting Party to choose the means necessary to comply with the Court's judgment, the Government consider that they implement necessary measures to comply with the Court's judgment in the present case.”
