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

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.

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The end of the Interlaken process: A (yet another) missed opportunity to guarantee the long-term future of the ECtHR?

This post was written by Stefanos Xenofontos, PhD Researcher at Birmingham Law School

The Steering Committee for Human Rights (CDDH) has recently submitted its contribution to the evaluation of the Interlaken process for the reform and future of the European Court of Human Rights (ECtHR or ‘the Court’). Building upon its assessment in the 2015 report on the matter, the CDDH’s latest report, signals the end of a decade-long reform process, at least at a technical level. The ECtHR has pledged to reply to the Report in 2020 (See, Foreword by President Sicilianos). Despite its importance, however, the CDDH’s Report did not attract much (academic) attention to date – something that the present post seeks to compensate. In what follows, after presenting the main conclusions reached by the CDDH, I argue that a rather conservative approach regarding the framework of the ongoing reform process remains apparent. In other words, the CDDH’s primary focus is on sustaining the current status quo of the European Convention on Human Rights (ECHR) system while disregarding any other possible alternative reform outside this existing framework. In this regard, I question whether the current reform framework, and measures adopted within it so far, have been sufficient in addressing and/or resolving the underlying challenges facing the ECtHR. The post concludes that in the absence of a clear determination of what the future role of the ECtHR should be, in a way that best reflects its regional, supranational and subsidiary character, the root causes of the Court’s challenges will continue to be overlooked and its viability and long-term effectiveness will be difficult to achieve.

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