By Kanstantsin Dzehtsiarou (University of Liverpool)
Infringement proceedings: the question of legitimacy
In 2010, when Protocol 14 entered into force, it amended Article 46 of the European Convention on Human Rights (ECtHR). Section 4 was added to this Article. It empowered the Committee of Ministers of the Council of Europe to initiate infringement proceedings before the Grand Chamber of the ECtHR. On 5 December 2017, the Committee of Ministers chose to use this procedure for the first time in history and referred the case of Ilgar Mammadov v Azerbaijan to the Court. The Grand Chamber of the ECtHR must now decide whether Azerbaijan has indeed failed to fulfil its obligations under the Convention.
Fiona de Londras and I warned that Article 46(4) can have detrimental effects on the legitimacy of the ECtHR. We explained that it is unlikely that this procedure can significantly increase the chances of execution, its added value is minimal and risks to legitimacy of the Court are substantial. This pending request offers the opportunity of applying our argument to the particular circumstances of this case. We argued that it would be particularly difficult to pick the first country against which this procedure will operate. Moreover, it would be particularly difficult to secure a 2/3 majority of the Committee of Ministers. There are 47 seats in the Committee, one for each Member State of the Council of Europe. In Mammadov, these difficulties were overcome; apparently, the reputation of the country mattered in the selection. Azerbaijan has a poor human rights record, it is considered dictatorial and it is not perceived as a state that shares common European values. Moreover, it is not too big, nor is it influential enough to destabilise the Council of Europe. Although the case of Ilgar Mammadov, who is in prison for political reasons, is an important one, it is not the only one. Other instances of political imprisonments did not trigger Article 46(4).
We also argued that a finding of violation of Article 46(4) would have limited effect, especially since the Court cannot impose any real sanctions. Apparently, the Grand Chamber could deliver another judgment stating the obvious, namely that the state failed to implement the judgment of the ECtHR. The key question is what would happen next. It was argued that finding a violation of Article 46(4) of the ECtHR could entail the suspension of membership of the Council of Europe. Although technically the Grand Chamber judgment is not a requirement for suspension, it would provide extra ammunition for it. This argument is therefore reasonable. However, if the suspension procedure is not initiated and the Grand Chamber judgment is not enforced, the legitimacy of the ECtHR would receive a clear blow. Likewise, the authority of the Council of Europe as a whole would suffer, since the organisation would appear to be unable to cope effectively with patterns of non-compliance.
Another important aspect might undermine the legitimacy of the ECtHR. Although the case of Ilgar Mammadov looks deceptively straightforward, there is a legal complication that needs to be addressed. The Committee of Ministers asserted that the applicant, an opposition activist, is in prison for his political activities; the ECtHR found a violation of Article 5 of the Convention, in conjunction with Article 18; as a result, the applicant should be immediately released. A breach of Article 18, in this context, implies that Mammadov was jailed not for a crime but for his political views. However, the ECtHR explicitly stated that his pre-trial detention was in violation of Article 5(c) of the Convention. Since then Mammadov was subsequently convicted, his current detention falls under Article 5(a). Technically, the Court has never found Azerbaijan in violation of the latter provision. Therefore, his detention is presumed legal until the Court rules otherwise. Undoubtedly, the Azerbaijani government will use this line of defence.
What should the ECtHR do?
Arguably, a finding of no violation of Article 46(4) would grossly undermine the legitimacy of the Court and the whole system of human rights protection in Strasbourg. There are at least two reasons to cite. First, a finding acquitting Azerbaijan would undermine the authority of the Committee of Ministers as it will show that the Committee is reading more into the judgment that there is in fact. This in turn might undermine other similar efforts of the Committee of Ministers. Moreover, in this case it would show that the Committee’s attempts to release Mammadov are not based in law. Second, such outcome would suggest that the Court does not do enough to reduce the number of political prisoners in Europe. Theresa May has already once accused the Court of dealing with issues like prisoner voting while failing to effectively deal with serious human rights violations in other countries. Whilst this statement might be unfair, a judgment of no violation in this case would certainly fuel similar accusations.
In this situation, the ECtHR should perhaps find a violation of Article 46(4) while its reasoning should not look too political and disconnected from law. Two doctrines that are well established in the case law of the ECtHR could come handy. First, the doctrine of a continuing violation. An example of a continuing violation is when the restrictions on the right to property are in violation of Article 1 of Protocol 1. One of the most famous cases in which the Court dealt with this issue is the case of Loizidou v Turkey. In that case, the applicant did not have access to her property even despite the fact that she was technically still an owner of this property. Article 1 of Protocol 1 enumerates various forms of prohibited restrictions of property rights, for example control, deprivation and other forms of interference. In other words, irrespectively of the form of prohibited interference a violation of Article 1 of Protocol 1 continues to exist. It only means that Article 1 of Protocol 1 was violated in both cases. The same logic can apply here – if an individual goes to jail for his political activity, a breach of Article 5 occurs irrespectively of the specific stage of the criminal procedure that caused the breach. The national court could release Mammadov and rectify the violation; since it did not do so, the original violation continues to exist even if the standard of review might have shifted to a different provision.
The second pertinent doctrine of the Court, dating back to some early judgments of the Court like Golder v UK and Airey v Ireland, is the doctrine of effectiveness of rights. The Court has stated repeatedly that rights should be practical and effective and not theoretical or illusory. The state should not get away with a violation of the Convention (at the pre-trial stage) by simply confirming a politically motivated accusation through a court judgment (of definitive conviction). The Court is often blamed for being slow in rectifying human rights violations; thus, the Committee of Ministers should be allowed some discretion in interpreting its judgments, to make them effective and executable. Here, the doctrine of effectiveness demands the Court to consider holistically the situation of Ilgar Mammadov, somewhat going beyond the specific judgment that initiated the infringement procedure. In the Ilgar Mammadov v Azerbaijan No 2 judgment, the Court confirmed that the trial breached Article 6 of the Convention. Therefore, the conviction issued by a national court could not undo the ECtHR’s conclusion that the imprisonment of Mammadov violated Article 5, irrespectively of which subparagraph of the provision is at stake.
The case of Mammadov, alongside many other key challenges that the ECtHR faces, is discussed in the book: Great Debates on the European Convention on Human Rights by F de Londras and K Dzehtsiarou (Palgrave 2018)