Strasbourg Observers

The impact of infringement proceedings in the Mammadov/Mammadli group of cases: a missed opportunity

May 28, 2021

Toby Collis, Lawyer at the European Human Rights Advocacy Centre (EHRAC)[1]

Infringement proceedings are a relatively new measure designed to deal with a state’s failure to implement a judgment of the European Court of Human Rights (ECtHR, the Court). Introduced by Protocol No. 14 in 2010, and contained in Article 46(4) of the Convention, the measure is triggered only after serving formal notice on the state concerned, and (which more difficult to achieve) securing a two-thirds majority of votes of the Committee of Ministers (CM). After this, the case is referred to the Court to determine whether the state has, in fact, failed to abide by the judgment. If such a failure is found, leading to a violation of Article 46(1) of the Convention, the case is then returned to the CM to consider any further measures that need to be taken. The CM cannot issue fines, but further measures could include adopting ‘strongly worded’ resolutions or decisions, convening meetings, and (in theory but not in practice) the state’s suspension or expulsion from the Council of Europe.

The infringement procedure was viewed by commentators as unlikely to ever be used. Then, along came the case of Azerbaijani opposition politician Ilgar Mammadov, who was imprisoned in circumstances the Court found had been designed to silence or punish him, and who remained imprisoned despite the CM repeatedly calling for his release. Perhaps because of this outrageousness, and perhaps because the stars aligned making it politically possible to gain the required number of votes in the CM, this case was the first and so far only example of infringement proceedings to be launched.

Now that a number of years have passed since these infringement proceedings were initiated, the purpose of this blog is to assess their impact–both on the situation of Ilgar Mammadov, and on that of several Azerbaijani politicians, human rights defenders and civil society activists who, like Mammadov, won a case in Strasbourg and are waiting for their judgments to be fully implemented. In cases such as these, where a number of judgments raise common issues, the CM will group them together and examine them jointly. The CM has therefore been supervising the execution of all these cases under the Mammadov (now Mammadli) group. We will see that the narrow terms of the infringement procedure—relating only to Mammadov and not the other applicants in the group, and not applying to general measures—led to a missed opportunity to generate meaningful impact.

(A brief) Background

A politician, activist, and founder of the political group REAL, Ilgar Mammadov was arrested in 2013 shortly after publishing a blog post about a street protest. Whilst in pre-trial detention, he applied to the ECtHR. Before his case was even heard in Strasbourg, Mammadov was convicted and sentenced to seven years of imprisonment for causing mass disorder. His first judgment at the ECtHR, in May 2014, related solely to his arrest and initial detention (but not his subsequent conviction). The Court found several Convention violations and held, in particular, that Mammadov had been detained without a reasonable suspicion. Importantly, the Court held that the purpose of Mammadov’s arrest had been to silence or punish him for criticising the government. This led the Court to find a violation of Article 18, which proscribes restricting Convention rights for ulterior purposes.

The judgment was silent (as most judgments are) on the measures the authorities should take to remedy the violation. At the implementation stage, Mammadov’s case was grouped together with the case of his colleague Rasul Jafarov, as well as those of Intigam Aliyev, Natig Jafarov, Anar Mammadli, Khadija Ismayilova, board members of the civic movement NIDA, and (most recently) the Yunosovs—all cases where the Court found (among others) violations of Article 18 combined with Article 5 for arrests and detentions designed to silence opposition.

The lack of implementation of these rulings led to calls for infringement proceedings. In December 2017, after the CM had steadily ratcheted up its criticism of the Azerbaijani authorities—calling to release Mammadov in no fewer than five interim resolutions—the required supermajority in the Committee was reached to trigger infringement proceedings under Article 46(4) (see an overview of this process here and debates on its usefulness here and here). The matter was referred to the ECtHR, for it to confirm whether Azerbaijan had failed to abide by its obligations to implement the judgment.

Shortly before these infringement proceedings were launched, a second judgment found that Mammadov’s conviction had violated the fair trial guarantees under Article 6(1) of the Convention. The Court did not, however, find another violation of Article 18. In August 2018 (after the infringement proceedings were launched but prior to the Court’s Article 46(4) judgment), Mammadov was conditionally released. Yet, his conviction stood, and all the consequences of an extant conviction—a travel ban, him being prevented from running in elections, and the freezing of his bank accounts—remained.

In May 2019, the Court handed down its Article 46(4) judgment. This judgment has been extensively reviewed by Başak Çalı (here), Jonas Vernimmen (here), Antoine Buyse (here) and Kanstantsin Dzehtsiarou (here), so we can limit ourselves here to a short summary. Unsurprisingly, the Court agreed with the CM’s assessment that Azerbaijan had failed to comply with its obligations under Article 46(1) to implement the judgment. To the disappointment of many commentators, however, the Court limited the scope of its judgment to Azerbaijan’s failure to adopt the necessary individual measures, declining to comment on the state’s failure to adopt general measures to prevent these malicious arrests and prosecutions from occurring. The Court agreed with the CM that Azerbaijan was obliged to expunge all criminal charges against Mr Mammadov and remove all the consequences arising from them.

Developments following the infringement judgment

The question is, then: what has been the impact of these infringement proceedings? On an institutional level, they have not readily changed the methods of the Committee: the CM has not rushed to use (or even threaten to use) this measure against other serial offenders of non-implementation, despite plenty of deserving candidates. Once used, however, we should ask whether infringement proceedings have generated positive impact, measured on the basis of:

  • whether the judgment was implemented;
  • whether it has resulted in positive implementation impacts in related cases; and
  • whether it has led to any changes regarding the broader issues that had caused the violations in the first place (i.e. general measures).

The results in Mammadov’s case, set within the implementation of the Mammadov/Mammadli group as well as the broader situation in Azerbaijan, presents a mixed picture. The piece will proceed by examining individual and then general measures, respectively.

Individual measures – No less, but no more, than what was narrowly required

First, soon after the judgment was handed down, the tone of the CM appeared to shift. Although its June 2019 decision did not refer to the Article 46(4) judgment directly, the Committee started pushing the Azerbaijani authorities to provide information on the measures they were taking to erase the consequences of the impugned criminal proceedings for the whole group of cases. And, at least at first glance, this resulted in some limited positive developments for all the applicants in the group: in its action plan for the September 2019 meeting, the Azerbaijani Government noted that all the applicants’ cases in the group had been sent to the Supreme Court for reconsideration. In response, the CM cautiously noted this development, but underlined that:

‘… the above findings of the European Court [in the infringement decision] make it clear that Azerbaijan is required rapidly to eliminate all the remaining negative consequences of the criminal charges brought against each of the applicants, principally by ensuring that the convictions are quashed and deleted from their criminal records.’

However, this positive shift was short-lived. By December 2019, none of the applicants’ cases had been heard by the Supreme Court. Consequently, at its December meeting, the CM not only reiterated its above message, but emphasised that this required ‘fully restoring [the applicants’] civil and political rights in time for the next parliamentary elections’. On 6 January 2020, despite the insistence of the Committee, the Azerbaijani authorities’ update to the CM noted that no date had been set for the applicants’ hearings at the Supreme Court. This delay effectively prevented any of the applicants from running in the February 2020 parliamentary elections, and had the effect of continuing to muzzle political opposition. In March 2020, the Committee adopted an Interim Resolution, in which it ‘deeply regret[ed] that, some nine months after the Court delivered its Article 46, paragraph 4, judgment, the applicants’ convictions still stand and they still suffer the negative consequences thereof, including the inability fully to resume their professional and political activities.’ It requested the authorities to report to the CM by 30 April 2020.

Then there was some good news: one week before the above deadline, the applicants Ilgar Mammadov and Rasul Jafarov (who is also a member of Mammadov’s political group REAL) received their judgment from Azerbaijan Supreme Court. With barely any reasoning (save that the court was taking account of the relevant ECtHR judgments), their convictions were quashed and they were awarded compensation. In its action report of 23 April 2020, the Azerbaijani authorities considered that this finalised the execution procedure for these cases, a view shared by both applicants (here and here). The CM agreed, and in September 2020 it closed both cases, which also had the effect of ending the infringement proceedings. As Ilgar Mammadov was the lead applicant in the group, the group was renamed the Mammadli group.

For Ilgar Mammadov, the process of the infringement proceedings and follow-up by the CM clearly was a significant factor leading to the desired impact, i.e. his release and complete exoneration. And it appeared that Rasul Jafarov was an additional beneficiary, perhaps because of the close political connections between the two. However, for all the other individuals in the group, any hope for positive impact of their cases being referred to the Supreme Court did not materialise. Their cases still have not be heard by the Supreme Court. In its November 2020 action report, the Azerbaijani authorities blamed delays in hearing their cases on the COVID crisis and then-ongoing hostilities surrounding the Nagorno Karabakh region. In its recent communication of 23 February 2021, the authorities stated that three cases—Mammadli, Hasanov and Aliyev—were under review, but the government provided no information on any scheduled dates for hearings. It added that COVID continued to affect the judiciary, and that consideration of the remaining cases in the Mammadli group had been delayed.  

In response, in its most recent March 2021 meeting, the Committee adopted another Interim Resolution. Its language signals that the CM is clearly running out of patience:

[The Committee]

DEEPLY DEPLORES that, notwithstanding the Committee’s persistent and repeated indications, the seriousness of the Court’s findings and the urgency of the required measures, restitutio in integrum has still not been achieved for the remaining applicants in this group, their abusive criminal convictions still stand and they continue to suffer the negative consequences of the criminal charges brought to silence and punish them, in breach of the Convention and in defiance of the principle of the rule of law;

EXHORTS therefore the Azerbaijani authorities to put an immediate end to this situation by ensuring that all the necessary individual measures are taken in respect of all the applicants as a matter of key priority and with utmost urgency and that the relevant information is submitted to the Committee by 30 April 2021 at the latest.

At the date of writing, this deadline has passed and no further information has been published on the CM’s HUDOC-EXEC database from the Azerbaijani authorities. Azerbaijan’s excuses for non-compliance are wearing thin. The response (or lack of response) from the authorities signals that any pressure generated by the infringement proceedings only affected the situation of the named applicant Mammadov (and, peripherally, his colleague Rasul Jafarov). All other applicants still suffer consequences in the enjoyment of their civil and political rights: whilst they have been released from custody, they are still unable to participate in elections, they continue to be subject to travel bans, and they still cannot join the Azerbaijani bar. This shows that the Azerbaijani authorities have taken an extremely narrow view to the infringement proceedings—doing no less, but certainly no more, than what it demands.

Further, other evidence demonstrates that the Azerbaijani authorities have deliberately separated the infringement proceedings in Mammadov’s case from the individual measures required by the rest of the Mammadli group. After a group of nine NGOs (including EHRAC) suggested in a Rule 9 submission that the Committee examine the further cases in the group ‘as a follow up to the infringement proceedings’, the Azerbaijani authorities bristled in response: they insisted that the infringement procedure was closed and that ‘the Grand Chamber judgment under … Article 46(4) concerned one particular case and absolutely is not open to any broader interpretation.’ This foot-dragging of the authorities over other the applicants, and their refusal to consider their cases as connected to the infringement proceedings, shows that, in future, the Committee should explicitly refer all cases within a group back to the Court, to ensure that any impact arising out of the infringement procedure in one applicant’s case be enjoyed by all the applicants.

General measures – business as usual

As mentioned above, the Court chose not to deal with the general implementation measures in the infringement proceedings judgment. What effect, if any, did omitting general measures from the infringement decision have on their implementation? The action plan from Azerbaijan issued shortly after the infringement decision from the Court was the most comprehensive to date, detailing the proposed measures to prevent retaliatory arrests and prosecutions, primarily via a Presidential Order of 2017 and a 2019 order on reform of the judiciary.

But these measures, as convincingly argued by IPHR in their Rule 9 submission, are either irrelevant or insufficient to address the systematic problem of misuse of the criminal law to silence opponents. And so, we are in the well-trodden territory of states outlining plenty of initiatives, none of which get to the heart of the issue. In their recent report of 23 February 2021, for example, the Azerbaijani authorities listed a number of reforms that are peripheral or largely irrelevant to the broader issue of malicious prosecution of activists and human rights defenders. The report outlined changes to the criminal provisions that incriminated a number of applicants (increasing thresholds for the crimes and reducing penalties), but this is irrelevant to the question of their misuse to silence opposition.

Similarly, the CM’s response has been the usual diplomatic-speak, ‘noting with interest’ the proposed reforms; encouraging authorities to ‘pursue efforts vigorously’; or to ‘step up’ efforts. In the March 2021 meeting, the CM stepped up its language just a notch. It:

‘strongly reiterate[d] its call for targeted and effective steps to be taken to address the root causes of these violations, in particular the misuse of the criminal law and retaliatory prosecutions, which could include the implementation of the relevant recommendations of the Group of States against Corruption to strengthen the independence of the judiciary and the prosecutor’s office.’

After the Court’s refusal to deal with general measures in its infringement decision, this ‘business as usual’ situation to general measures was entirely predictable. This merry-go-round on general measures might have been avoided had the Court taken a firm position, as it was entitled to do, on whether Azerbaijan had failed to implement general measures and, if so, what it was required to do.


We have seen that the Court and Azerbaijan took a very narrow approach to discharging their respective roles in the infringement process. To maximise the potential impact of this process, the Committee must, in future, explicitly apply it to all members of an execution group (for cases that form part of such a group). It should also explicitly apply it to general measures.

Given the missed opportunity that neither of these occurred in the present case, what should the Committee do now? The business-as-usual approach is clearly not effective. The ‘nuclear option’ of suspending voting rights is both politically unfeasible and unwarranted, as Azerbaijan did indeed comply with an admittedly narrow infringement process. New infringement proceedings could be an option, but may be difficult to set in motion: after all, the situation of the remaining applicants, whilst appalling, is less dire than that of Ilgar Mammadov (unlike the latter, who was still imprisoned when the first infringement process was launched, the other applicants are no longer in custody). At the same time, given that new proceedings concern not only the same state, but also essentially the same issue on which the Court has already made infringement findings, members of the CM could view this as more a de facto ‘reopening’ of infringement proceedings, rather than fresh proceedings. Doing so might make the process more politically palatable.

Finally, aside from the issue of infringement proceedings, the Committee must begin to take a holistic view of these cases within the broader context of repression of human rights defenders (as EHRAC’s Philip Leach recently argued here). As forcefully argued by the group of nine NGOs, the CM must widen its scope on the general measures, not just on misuse of the criminal law, but in particular on the increasingly restrictive laws operating against NGOs—some of which led to prosecutions against members of the Mammadli group. Only then will they, in the Committee’s words, get ‘to the root causes of these violations’.

[1] EHRAC represents applicants Rasul JafarovIntigam Aliyev, and Leyla and Arif Yunus as part of the Mammadov/Mammadli group of cases.

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