June 04, 2019
By Kanstantsin Dzehtsiarou (University of Liverpool)
The Grand Chamber of the European Court of Human Rights (ECtHR) delivered its first ever judgment in an infringement procedure request (under Article 46-4 ECHR) in the case of Mammadov v Azerbaijan. The applicant in this case was an opposition leader from Azerbaijan who was put in prison contrary to Articles 5-1c and 18 ECHR. The Court confirmed that acquittal of the applicant was the only individual measure capable to remedy this violation. In so doing, the Court has effectively made the only decision that was politically plausible, namely it agreed with the Committee of Ministers that the judgment in the first Mammadov case was not executed properly. I have argued that this was the only possible solution in my previous blog post on the issue. The Court made it clear that the Committee of Ministers has quite broad competencies in interpreting the judgments of the ECtHR. Başak Çalı has written a good blog post analysing the substance of this decision. So, to avoid repetition I am going to focus on a few points which I found important not only for this judgment in particular but also for the future of the procedure pursuant to Article 46-4 ECHR if the Committee of Ministers ever requests a new judgment.
The main aim that any court has to pursue is to put an end to a legal dispute; arguably the Court has achieved this aim in the case under review. According to the judgment in the first Mammadov case, it was clear that the applicant had to be acquitted by the national authorities unless there were obstacles in doing so (para. 189). No obstacles were identified. The Court established non-execution of its previous judgment but this infringement proceedings judgment also needs to be executed now.
Fiona de Londras and I warned that one of the main challenges of infringing proceedings will be the follow-up of the judgment under Article 46-4: both judgments need to be executed – the original one and the judgment under Article 46-4. One could argue that such judgment should lead to a discussion on the suspension or expulsion of the Member State in question. However, in this case, I would argue that there is no ground to discuss further sanctions any longer because, although Mammadov has not been acquitted, he was released from prison after the Committee of Ministers request was submitted to the Court. So, the infringement proceedings judgment in Mammadov case will probably go back to the Committee of Ministers which will continue demanding from the Azerbaijani authorities to remove Mammadov’s charges. This will create a circular situation in which instead of one judgment the Azerbaijani authorities will have to comply with two. The Court itself cannot sanction non-compliance. Moreover, no additional just satisfaction to the applicant was awarded. Perhaps, the very initiation of the infringement proceedings by the Committee of Ministers had speeded up the release of Mammadov in the first place but it is almost impossible to prove whether that was a decisive or even considerable factor here. We will have to see whether this infringement proceedings judgment will lead to any further activities of the Azerbaijani authorities in terms of execution of the first Mammadov judgment. However, it is not clear why the effect of an infringement proceedings judgment will be any different than the effect of any other judgment of the ECtHR.
The ECtHR has ruled that it looks at the question of execution of its judgment at the moment when the request from the Committee of Ministers was submitted to the ECtHR. At the same time, the ECtHR has confirmed that the Committee of Ministers is empowered to withdraw the request from the Court’s consideration. Although these two decisions look technical, they are nevertheless significant and should be examined together. The Court left the task of assessment of the actions of the respondent state made after the submission of the request with the Committee of Ministers. The Court’s role is limited to a binary choice of whether the judgment was executed at the moment of the submission of the request. Fiona de Londras and I argued that there will be no reason for the respondent state to do anything in terms of execution before the ECtHR delivers its judgment in infringement proceedings. The reality appears to be more complex than we anticipated. After a request is submitted by the Committee of Ministers, but before the Court’s judgment in infringement proceedings, three developments seem possible.
First, the respondent state continues to refuse execution. Then, in case of finding that the judgment was not executed, the Council of Europe can proceed to the ultimate sanctions such as suspension and expulsion. Of course, the procedure under Article 46-4 is not a precondition for suspension and expulsion but can act as a formal reason for it. If this does not happen, then the rationale for introduction of infringement proceedings completely escapes me. Knowing how resistant the Council of Europe is in applying the sanction of last resort, it might all end up in no formal legal follow-up. Second alternative is that the respondent state enforces the initial judgment while the infringement procedure is still pending. In this case, the Committee of Ministers can withdraw their request and the case should be closed. Finally, the most complicated scenario, which we have in Mammadov case, is partial execution. The state does some actions in order to execute but not everything that is required. In this case, although the Committee of Ministers can still raise the question of suspension it would not sound convincing enough. The “new” judgment will probably go back to the Committee of Ministers and the execution of the initial judgment continues.
In all of these scenarios, the Court’s judgment is a political tool rather than legal. In the first scenario, formally the Council of Europe does not need a judgment from the ECtHR to start the procedure of suspension or expulsion. In the second scenario, the threat of judgment, not the judgment itself is a reason for execution because it is executed even prior to the judgment. The last scenario represents partial execution which could have been triggered by Article 46-4 but full execution can hardly be ensured by it.
Concurring opinion in the name only
Although the judgment was unanimous, judges Yudkivska, Pinto De Albuquerque, Wojtyczek, Dedov, Motoc, Poláčková and Hüseynov wrote a joint concurring opinion. This opinion is concurring in the name only. Not a single reason is given of why the concurring judges voted with the majority; while their disagreement goes straight into the heart of the analysis of the majority. The authors of this concurring opinion disagreed that finding a violation of Articles 5-1c and 18 in the first Mammadov judgment required an immediate release of the applicant as the Committee of Ministers demanded. So, if they argue that the individual measure under consideration is not required, then it is hardly possible to justify the conclusion of the majority that Azerbaijan did not execute the first Mammadov judgment. It is worth noting that the just satisfaction was paid, the general measures of execution are outside the scope of this case and only individual measures were not taken because Mammadov was not exonerated of the charges. If exoneration is not required then the reason for finding of violation of Article 46-4 is unclear.
The judges in their concurring opinion explained that “the respondent State failed to execute the first Mammadov judgment because it failed to remedy, during the subsequent appeal proceedings, the deficiencies found by the Court in that judgment” (para 20). This reasoning looks artificial; it looks like when one argues a particular point and then right at the end one has to change one’s position to the contrary. It is not clear how the deficiencies found in the first Mammadov judgment could have been remedied.
It seems that this concurring opinion can be easily converted into a dissenting opinion by changing the title and deleting a couple of sentences. However, a more interesting question is perhaps why the judges who clearly disagreed with the majority decided to vote with them. One can suggest that it was a desire to strengthen the position of the Court and the Committee of Ministers vis-à-vis the respondent state. The Azerbaijani authorities could have used the fact that the judges themselves could not agree on the mode of execution as another reason not to execute. It seems that the judges voted using the interests of fairness and humanity rather than reasoning based on law.