December 20, 2017
By Lize R. Glas, assistant professor of European law, Radboud University
For over seven years, the Committee of Ministers (Committee) has had at its disposal the ‘nuclear option’ of launching infringement proceedings against a state that refuses to execute a Strasbourg judgment. On 5 December 2017, it decided to go nuclear for the first time, in the case of Mammadov v. Azerbaijan.
Ilgar Mammadov is a prominent Azerbaijani opposition politician. In November 2012, the authorities detained him, only one hour after he had published a blog about a street protest. He remained in detention on remand until March 2014, when he was convicted to seven years’ imprisonment for the offence of causing mass disorder. Mammadov has been imprisoned ever since; the Supreme Court rejected his last appeal in November 2016.
Judgment on the merits
Mammadov brought a case before the European Court of Human Rights (Court), resulting in a judgment in May 2014. The Court established that Mammadov had not contributed to causing the protest and that Azerbaijan had not submitted any evidence to prove the contrary. Mammadov had therefore not been detained to bring him before a judge on reasonable suspicion of having committed a criminal offence, causing a violation of Article 5(1)(c). Additionally, the Court found a violation of Article 5(4), because the domestic courts had ordered and extended the applicant’s detention without genuinely reviewing the lawfulness thereof. The authorities had also violated the right to be presumed innocent, laid down in Article 6(2), because they had issued a press release prior to Mammadov’s conviction claiming that his actions had been ‘illegal’ and that it had been ‘established’ that he had incited the protesters to resist the police. Lastly, the Court concluded that Azerbaijan had violated Article 18 in conjunction with Article 5. The authorities had not detained Mammadov to bring him before a judge to answer for a crime, but to silence or punish him for criticising the government and for attempting to disseminate information that he believed the government were trying to hide. This is one of the ‘handful’ of cases where the Court has found a violation of Article 18, meaning that the state had acted in bad faith. Although the violations found did not seem to ‘leave any real choice as to the measures required to remedy it’ (i.e. releasing Mammadov), the Court did not describe these measures in its judgment.
Supervision prior to the infringement proceedings
The Committee has requested Azerbaijan to release Mammadov and to take other execution measures since it first examined the case at its Human Rights meeting in December 2014. The case has been on the order of business of each subsequent meeting, which is quite exceptional as the Committee ‘discusses and supervises [at these meetings] only the tip of the iceberg of all cases which are formally under its permanent supervision’.[i] Additionally, the Committee decided in June 2016 to examine the case at each regular Committee meeting until Mammadov would be released. At its Human Rights meetings, the Committee adopted no less than five interim resolutions (in March 2015, September 2015, June 2016, October 2017 and December 2017). This is also exceptional, because it issued only 4.3 interim resolutions per year from 1988-2008 and 7.6 per year from 2009-2013.[ii] In the interim resolutions, the Committee of course reiterated its call to release the applicant. It also expressed its ‘deepest concern in respect of the lack of adequate information on the general measures envisaged to avoid any circumvention of legislation for purposes other than those prescribed’ and called on the member states to raise the case with the Azerbaijani authorities and invited international organisations to do the same. In its interim resolution of 2016, the Committee declared that it was resolved to ensure Azerbaijan’s compliance with the judgment ‘with all means available’ to it. Subsequently, at its meeting of June 2017, it noted that these means include the possibility foreseen in Article 46(4).
This provision empowers the Committee to refer to the Court the question whether a state has failed to fulfil its obligation to execute a judgment, if that state refuses to abide by a judgment. This possibility has existed since 1 June 2010, when Protocol 14 entered into force. The drafters the Protocol explained that the Committee should bring infringement proceedings ‘only in exceptional circumstances’. They also expressed the hope that the ‘procedure’s mere existence, and the threat of using it, should act as an effective new incentive to execute the Court’s judgments’. The decision to launch infringement proceedings requires a two-thirds majority. Due to this requirement, some commentators called it ‘unlikely, but not inconceivable, that the Committee would ever make use of this new power’.[iii]
The unlikely has happened: in October 2017, the Committee served formal notice on Azerbaijan of its intention to launch infringement proceedings and, in December 2017, it actually launched such proceedings. Apparently, the Committee could unite to overcome the obstacle of the two-thirds majority. In the relevant interim resolution, the Committee mentions the violation of Article 18 three times and recalls that the Supreme Court judgment of November 2016 concluded the criminal proceedings against the applicant, without drawing consequences from the violations found by the European Court.
As Rule 11(3) of the Rules of the Committee of Ministers for the supervision of the execution of judgments requires, the interim resolution reflects the views of the respondent state concerned. Surprisingly, Azerbaijan does not address the Supreme Court judgment; it only mentions the decision of the Sheki Court of Appeal (whose decision Mammadov appealed before the Supreme Court). According to Azerbaijan, the Court of Appeal ‘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’. This statement goes directly against the Strasbourg Court’s judgment in a second case brought by Mammadov about the trial following his arrest. In that judgment, the Court found that his right to a reasoned judgment and to examine witnesses had been infringed (Article 6). Moreover, it found that ‘none of the shortcomings … were eventually remedied’ by the domestic courts. Azerbaijan also mentions some general measures that it has taken and concludes:
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.
With this type of a contrario reasoning (the Court did not indicate execution measures, so no measures are required), Azerbaijan shows bad faith again. The Court indicates execution measures in very few cases and the absence of such an indication in no way means that execution measures are unnecessary. Unfortunately, this is not the only instance where a state uses such reasoning as an excuse for not taking execution measures. The Execution Department hears this excuse more often.[iv] Moreover, although it is ‘primarily for the State concerned to choose the means’ to execute a judgment, this discretion is circumscribed by two factors and Azerbaijan ignores these factors when referring to its discretion. First, the means must be ‘compatible with the conclusions set out in the Court’s judgment’. As I already pointed out, the conclusion in Mammadov’s case – a violation of Article 5(1)(c) – means that he has to be released. Second, the discretion of the state is ‘subject to supervision by the Committee’ and this body has formulated very clearly what is expected of Azerbaijan. The conclusion of Azerbaijan does not hold therefore.
The Committee is, by the way, not the only Council of Europe body that has put pressure on Azerbaijan. The Commissioner for Human Rights, Nils Muižnieks, raised the issue of rapid execution of, amongst other judgments, Mammadov v. Azerbaijan with the authorities during a country visit. Furthermore, the Parliamentary Assembly has urged ‘the Azerbaijani authorities to execute the judgment and release Mr Mammadov immediately’. Even the Secretary General has become involved. Jagland has used his power in Article 52 to conduct an inquiry into how the domestic law of Azerbaijan ensures the effective implementation of the Convention. The Secretary General explained that he is ‘particularly alarmed when individuals are deprived of their liberty due to an abuse of power by a country’s legal authorities, as the [Court] found in the case of Ilgar Mammadov’. This is only the third time that a Secretary General has invoked this power in relation to a specific state.
Future judgment on execution
Because the judgment on the merits clearly implies that Mammadov has to be released, the Court will almost certainly find a violation of Article 46(1) in the judgment on execution, because of Azerbaijan’s failure to set Mammadov free.
A more interesting legal question is what will happen if Azerbaijan releases the applicant before the Court adopts its judgment. Will the Court still decide on the case or will the Committee end the infringement proceedings immediately? Another question is whether the Court will pinpoint when exactly the violation has started and whether it will award just satisfaction to Mammadov if it finds a violation of Article 46(1). The latter is uncertain, since the Committee brings the proceedings and because it is ‘very doubtful’ that Article 46(1) confers upon the applicants a right that they can assert.
Another uncertainty is how broad the Court’s approach will be: will it just focus on Azerbaijan’s failure to release Mammadov or will it also scrutinise the general measures that Azerbaijan intends to take? Article 46(1) requires that states do not just take measures concerning the applicant, but also ‘in respect of other persons in the applicant’s position, notably by solving the problems that have led to the Court’s findings’. Furthermore, Article 46(4) provides that the Committee refers ‘the question whether [the respondent state] has failed to fulfil its obligation under paragraph 1’; the Convention does not empower the Committee to ask whether the state has fulfilled part of this obligation. In its interim resolution and in line with the Convention, the Committee referred the question whether Azerbaijan ‘has failed to fulfil its obligation under Article 46 § 1’. Apart from these legal arguments, the Court would deny the reality if it would ignore the general measures altogether. Mammadov’s case is not an isolated incident, but emblematic of the poor human rights record of Azerbaijan. Furthermore, the Committee has not yet closed its supervision of the general measures. On the contrary, in September 2017, it asked Azerbaijan to ‘provide detailed information about the legislative amendments foreseen’. Nevertheless, the Committee seems to be mostly interested in the question whether the failure to release Mammadov violates Article 46(1). Its entire interim resolution is about this measure. The Committee, for example, notes that ‘by not having ensured the applicant’s unconditional release, [Azerbaijan] refuses to abide by the final judgment’. Azerbaijan, however, also addresses the general measures in its views.
Supervision after the infringement proceedings
As noted, the drafters of Protocol 14 hoped that the mere existence of the infringement procedure and the threat of using it would work as an incentive for execution. Since the Committee has launched infringement proceedings against Azerbaijan, the procedure has not worked as hoped in Mammadov’s case. The drafters also expected that ‘the political pressure exerted by proceedings for noncompliance in the Grand Chamber and by the latter’s judgment should suffice to secure execution of the Court’s initial judgment by the state concerned’. The question is whether this expectation will come true. If the Court finds that Azerbaijan has failed to execute the judgment, the only thing that will have changed is that, not only the Committee, but also the Court has established that Azerbaijan has violated Article 46(1). Since Azerbaijan has already showed bad faith, despite close supervision by the Committee and other Council of Europe organs, it is doubtful whether it will release Mammadov in response to the judgment. Moreover, according to Human Rights Watch, the President of Azerbaijan, Aliyev, ‘has indirectly threatened to withdraw Azerbaijan from the Council of Europe, and has predictably tried to blame the current crisis on Jagland’. This reaction further confirms Azerbaijan’s uncooperative attitude. More generally, de Londras and Dzehtsiarou, note that ‘the reality is that an Article 46(4) procedure effectively tells us what we already know: that a State has failed to respect a judgment of the Court’. They therefore conclude that infringement proceedings are almost certainly futile.
If the procedure turns out to be futile in Mammadov’s case, Azerbaijan defies not only the Committee’s authority, but also that of the Court and the procedure is ‘spoilt’.[v] You can therefore wonder whether the Committee should have used the procedure at all. Many would answer ‘yes’ and have encouraged the Committee to start infringement proceedings in this case, including Mammadov himself. He asked the Committee to ‘please activate’ the procedure and explained that ‘the authorities do perceive [each postponement] as an invitation to exert such a pressure on me which, they believe, would demoralize me into surrender and thus take the burden of the case off the Council of Europe shoulders’. Other supporters include the Parliamentary Assembly, the Commissioner for Human Rights, NGOs (e.g. Amnesty International and the European Implementation Network) and bloggers (see also here). Additionally, the former President of the Court, Spielmann, has remarked at a regular meeting of the Committee that ‘[c]et outil, resté inexploité jusqu’à présent, pourrait s’avérer utile dans le futur’. I agree with Mammadov and his supporters: now that the Committee has the power to bring infringement proceedings, its authority is also at stake when it does not use this power when facing – in its own words – a ‘flagrant breach’ of Article 46(1). This is particularly so, because Mammadov’s case is emblematic of something bigger.
When the Court will find a violation, the Committee will continue to supervise the case ‘for consideration of the measures to be taken’ (Article 46(5)). The Committee has already used most of its options by then (interim resolutions, examining the case at the regular Committee meetings and infringement proceedings). The only two stronger measures that remain are to suspend Azerbaijan’s voting rights and to expel Azerbaijan from the organisation for a serious violation of Article 3 of the Statute of the Council of Europe (Article 8 of the Statute). Article 3 stipulates that the member states ‘must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights …, and collaborate sincerely and effectively in the realisation of the aim of the Council’. The Committee has already underlined this obligation in an interim resolution in the case of Mammadov. These ‘extreme measures’ would, however, ‘prove counter-productive in most cases’, as the drafters of Protocol 14 noted, because the state against which the Committee launches infringement proceedings ‘continues to need, far more than others, the discipline of the Council of Europe’. This certainly applies to Azerbaijan, as others have noted too.
Future infringement proceedings
A remaining question is whether the Committee, now that it has used the procedure for the first time, will launch infringement proceedings on a frequent basis. This is unlikely, since the Committee may use the procedure only in exceptional circumstances. Additionally, even though the situation regarding the implementation of the Court’s judgment is ‘very worrying’, not many cases have the features of the Mammadov case that made this case exceptional and acceptable to a two-thirds majority. These features are that it is clear which straightforward individual execution measure is required and that the state has knowingly failed to take this measure. Moreover, the Court found a violation of Article 18, which underlines that Azerbaijan does not act in good faith (as the Committee recalled several times in the interim resolution). When a state is acting in good faith, but does not have the resources to comply with a judgment, or when more complex measures are needed than releasing one person, for example amending legislation, I assume that the Committee will be more hesitant and even reluctant to launch infringement proceedings.
[i] Lize R. Glas, The Theory, Potential and Practice of Procedural Dialogue in the European Convention on Human Rights System (Intersentia 2016) 401.
[ii] ibid 436.
[iii] David Harris and others, Law of the European Convention on Human Rights (3rd edn, OUP 2014) 197.
[iv] Glas (n i) 392-393.
[v] In the words of an interviewee at the Execution Department, see ibid 415.