October 25, 2018
By Kanstantsin Dzehtsiarou (University of Liverpool)
In spring 2014, shocking news came from Azerbaijan. Leading human rights defenders including Mr Intigam Aliyev were arrested and charged with various financial crimes. It was clear that these charges were just a cover-up for the silencing of vocal critics of the government and for the destruction of an effective human rights defence in the country. It is not surprising that those arrested and charged brought their cases to the European Court of Human Rights (ECtHR or Court). In September 2018, more than two years after Mr Aliyev was in fact released, the Court has delivered its judgment in his case. There are plenty of reasons to praise this judgment; the Court unanimously found plenty of violations of the Convention including violations of Articles 3, 5, 8 and 18. Under Article 18, the Court found that the true purpose of the arrest was not punishment for the crimes committed by the applicant but retaliation for being a human rights defender. As it is often the case, this judgment came slightly too late because the applicant has already been released from prison but it helpfully reinforces a line of judgments showing that Azerbaijani authorities use criminal law to silence its opponents. This blogpost will however focus on a more problematic aspect of this judgment, namely the Court’s attempts to improve the legal system in Azerbaijan by defining general measures that must be implemented to effectuate this judgment.
Too ‘general’ general measures
The judgment in Aliyev v Azerbaijan differs slightly from the previous ones in this line of cases. In Aliyev the Court decided to list general measures that Azerbaijan needs to implement as a result of this judgment. Most of the judgments of the ECtHR trigger individual and general measures. Individual measures are designed to restore the human rights of a particular applicant. General measures are adopted to prevent new violations similar to those found or to put an end to continuing violations. The ECtHR rarely prescribes general measures in its judgments, leaving this task to the Committee of Ministers – a body that supervises the execution of the ECtHR judgments. In Aliyev v Azerbaijan the Court established that Azerbaijani ‘courts, being the ultimate guardians of the rule of law, systematically failed to protect the applicants against arbitrary arrest and continued pre-trial detention in the cases which resulted in the judgments adopted by the Court, limiting their role to one of mere automatic endorsement of the prosecution’s applications to detain the applicants without any genuine judicial oversight’ (para 224). Therefore, the Court suggested that
the necessary general measures to be taken by the respondent State must focus, as a matter of priority, on the protection of critics of the government, civil society activists and human-rights defenders against arbitrary arrest and detention. The measures to be taken must ensure the eradication of retaliatory prosecutions and misuse of criminal law against this group of individuals and the non‑repetition of similar practices in the future (para 226).
Although, it is indeed important to ensure that there is no misuse of criminal law in any legal system – this recommendation looks straightforward if not obvious. It is highly unlikely that the Azerbaijani authorities genuinely believed that they were acting in compliance with the Convention. They knew that they violated the Convention. Moreover, they tried to disguise their actions by resorting to the criminal law. The Court’s finding of a violation of Article 18 shows this. It turns out that the Court asks the government that used criminal law to hide its real motives to reform its criminal law in order to ensure that this does not happen in future. The judgment itself has already called the bluff of the Azerbaijani authorities and the structural reform is a logical consequence of this ruling. However, this reform can be possible if the government is prepared to cooperate with the Council of Europe.
Challenges of implementation of the general measures
The Committee of Ministers will have to face multiple challenges in executing this judgment. Among other things, the Court asks the respondent state to prove a negative, i.e. the absence of a retaliatory purpose. Also, does it mean that, as long as there are no further misuses of criminal law, these general measures should be considered enforced?
Alternatively, if these measures call for proactive actions from the Azerbaijani authorities then I see two main possibilities of execution here. First, these general measures invite Azerbaijan to undertake a comprehensive reform of its political and judicial system. In this case, the executive would have no impact over the judiciary, the state would turn into a genuine democracy and such flagrant violation of “European public order” (para 225) as in this case would never occur. I am doubtful that the Court really believes that this is a realistic scenario. Second, the Azerbaijani authorities might introduce some changes into their legislation ensuring fictional judicial independence but, when it is politically necessary, these safeguards will be put aside and the same can happen again. In turn, this will prove that the measures suggested by the ECtHR failed to work.
I would not like to undermine the importance of the Court. Often, it can be the last beacon of hope for those who have no effective remedies within their home state. At the same time, neither the Committee of Ministers nor the Court itself have sufficient tools to make sure that serious political changes happen within the member states. The question remains – should the Court request something that is almost impossible to enforce?
Should the Court be more involved in shaping of general measures?
Those who think that the Court should get more involved in defining general measures might argue that the Court hereby emphasises the problem and that this creates extra pressure on the respondent state. This assertion is hardly impossible to prove empirically. Moreover, the release of the applicants cannot prove this point because it shows the effectiveness of individual measures rather than these broad-brush general measures. Moreover, if the general measures requested by the Court remain a dead letter, it damages the reputation of the Court.
Another argument of the supporters of more detailed general measures might come from the fact that the Court was created to prevent sliding democracies into totalitarianism. It seems that it can fulfil this task only by influencing the bigger picture with general measures. That said, it has been convincingly shown that the Court can very well deal with individual cases but that its track record with more substantive social changes is less impressive. Finally, the Court’s involvement in highly politicised general measures can only work if the respondent state is genuinely ready to collaborate with the Committee of Ministers. If loyal cooperation is lacking, then such exercise will be either a mockery or result in a complete disregard of the general measures.
There are quite a few reasons that can undermine the utility of the Court’s more proactive approach to general measures in cases like Aliyev v Azerbaijan. First, there is very high chance that this ruling will not be acted upon, especially in the short run. Azerbaijan is known for ignoring much more precise and clear rulings of the Court. Second, many of the Court’s judgments trigger general measures anyway. The Committee of Ministers formulates these measures and tries to enforce them. Even despite the fact that the Court has mentioned these general measures in its judgment, the lawyers of the Committee of Ministers will have to clarify them anyway.
To sum up, the danger of non-execution and the little added value of the Court’s attempts to formulate general measures makes their utility questionable. The emphasis on obvious general measures may also drag the Court into the territory of a political decision-making.
Very interesting stuff Kanstantsin, thank you. The case brings into great focus what can reasonably be achieved by the ECtHR today, and how reliant it is on the States to support it in cases such as this.
I am reminded (as you say) that one of the original ideas of the Convention was that it would be more of a safeguard against serious violations and backsliding into totalitarianism. In such circumstances the enforcement measures were envisaged as being be far more political than legal.
That is, the Committee of Ministers would be functioning along the lines anticipated by Churchill when he had spoken of the idea of a Court in 1949. He had called for a Court ‘before which cases [of human rights violations] might be brought to the judgment of the civilised world’.
Such a Court he noted: ‘would have no sanctions and would depend on the enforcement of their judgment on the individual decisions of the States now banded together in this Council of Europe. But these States would have subscribed beforehand to the process, and I have no doubt that the great body of public opinion in all these countries would press for action in accordance with the freely given decision’.
Thanks Ed. This is very useful. But I think it was your argument that the Court is that capable of doing what it’s original function was supposed to be. It is good in adjudication and it simply does not have an infrastructure to achieve more. I will be very happy if the Court’s general measures work but there is just a big chance that they won’t (especially when formulated in such general terms). I think that the Court has to be careful with its general measures but I totally agree that this issue is a part of a much bigger challenge, namely whether the Court is capable of doing anything to prevent countries to slide down to totalitariansm. I am afraid but my annswer is no.
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