It is a season of firsts for the European Court of Human Rights. After its first Advisory Opinion under Protocol 16 last month, about which I reported earlier, this week the Grand Chamber has handed down its first judgment re infringement proceedings: Ilgar Mammadov v Azerbaijan. Mammadov is an Azerbaijani opposition politian and human rights activist who had been imprisoned from 2013 to 2018 and for many years the Council of Europe, other international organisations, and many NGOs had been calling for the release of this political prisoner. In this week's judgment, the Court unanimously found that the steps taken to implement the original judgment in the Ilgar Mammadov case of 2014 had only been limited and that as a result it could not be said that Azerbaijan had acted in “good faith”, in a manner compatible with the “conclusions and spirit” of the first Mammadov judgment. As a result the country had failed to fulfil its obligations under article 46 of the ECHR to abide by the Court´s original judgment. This very damning appraisal of how Azerbaijan deals with its European Convention on Human Rights obligations is the first outcome of the so-called infringement proceedings.
The idea of infringement proceedings
The idea to create infringement proceedings within the ECHR system was first floated in the Parliamentary Assembly of the Council of Europe (PACE). Such proceedings were meant to make the implementation of the judgments of the Court more effective - even if by international comparison, then and now, the Strasbourg system's record is one of the more hopeful among international human rights institutions. Initially, the starting point was to give teeth to the proposal by including the idea of fines for states that persistently delayed the execution of judgments. Introducing infringement proceedings eventually became part of the wholesale reform of the Court in Protocol 14 to the ECHR of 2004, which entered into force in 2010. An amended version of Article 46, on the binding force and execution of judgments, from then onwards included a fourth paragraph, stating:
"If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the Committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1."
Paragraph 1 obliges State Parties to abide by the final judgments of the Court in cases to which they are parties. The amendment of Article 46 should be seen in the wider context of the large influx of cases reaching the European Court of Human Rights already in those days. The underlying idea was that the better and more efficient the Committee of Ministers could make sure states implement the Court´s judgments, the less new human rights complaints would come to Strasbourg. The option of bringing infringement proceedings for states refusing to comply with judgments was therefore added, in the shape of the new Article 46(4) to the Convention. One may note that this is not about (temporary) inability, but about unwillingness to secure ECHR standards. Thus infringement proceedings were meant to be used only in exceptional circumstances. The final formulation did not include a system of fines and may thus have lost some of its teeth (or crucial fangs, some might say), even if the moral and political message was still clear. As the State Parties phrased it in the Explanatory Report to Protocol 14:
"This infringement procedure does not aim to reopen the question of violation, already decided in the Court’s first judgment. Nor does it provide for payment of a financial penalty by a High Contracting Party found in violation of Article 46, paragraph 1. It is felt that the political pressure exerted by proceedings for noncompliance in the Grand Chamber and by the latter’s judgment should suffice to secure execution of the Court’s initial judgment by the state concerned."
Today, one can conclude that indeed the starting point of exceptionality has been heeded by the Committee of Ministers, as these first ever infringement proceedings in the Mammadov case were only initiated at the end of 2017. The reason was the continuing refusal by Azerbaijan to unconditionally release opposition politician Ilgar Mammadov following the Court´s 2014 judgment.
Origins of the Mammadov case
Ilgar Mammadov was the co-founder and chair of the Republican Alternative Civic Movement (“REAL”), a political party on whose ticket he planned to run for the 2013 presidential electinos in Azerbaijan, He also blogged on topical political issues, including being very critical about parliament, for the adoption of a law that introduced heavy penalities for unauthorised demonstrations. In early 2013, he also reported on riots in the town of Ismayilli, afterr visiting the place. He blamed the unrest on "corruption and insolence" of public officials.Within a few weeks, he was charged with the offences of organising or actively participating in actions causing a breach of public order and detained on remand from 4 February 2013 onwards. Later, the charges were changed to the offence of resistance or violence against public officials, posing a threat to their life. In March 2014, he was sentenced to seven years in prison. But even before that, on 25 February 2013, he had lodged his first complaint with the European Court of Human Rights, relating mainly to the pre-trial detnetion and the abuse of power by the Azerbaijani authorities, who in his view tried to silence an opposition politician.
Issuing its judgment on 22 May 2014, rather fast for Strasbourg, the Court found violations of the right to liberty (Article 5 ECHR), as Azerbaijan had not shown that there was a "reasonable suspicion" that Mammadov had committed an offence nor that there had been a genuine review of lawfulness of his detention. Due to statements about his guilt from the public prosecutor and the Ministry of the Interior, the Court also found a violation of the presumption of innocence (Article 6(2) ECHR). But no doubt the most damning part of that judgment for Azerbaijan is that the Court also found a violation of Article 18 ECHR in conjunction with Article 5. Azerbaijan was to pay 20,000 euros for non-pecuniary damage suffered by Mr Mammadov. However, the judgment did not specify which particular measures Azerbaijabn should take to remedy the situation, releasing Mr Mammadov being the obvious one among those.
Notably, the finding of a violation of Article 18 entails that the Court concluded that Azerbaijan had acted in bad faith under the Convention. The Court agreed with Mr Mammadov's contention that the real reason to detain and convict him was not because they suspected him of having committed a crime, but rather to silence or punishing him for his critiques of the government. The object of Article 18 is to prohibit the misuse of power and violations are very rarely found. In fact, there are less than a dozen in the Court´s entire case-law - several others of which also against Azerbaijan by the way (see for an overview the Court´s case-law guide on Article 18, avaialble in English, French and ... Azerbaijani!). Since this points to such fundamental problems with the rule of law, the issue of Article 18 would also resurface in the infringement proceedings later on.
In a separate, later application, Mammadov also complained about grave inadequacies in the trial leading up to his conviction. The Court, in the second Mammadov judgment of November 2017, concluded that his trial had indeed been unfair and found a violation of Article 6(1) ECHR.
From supervision to infringement
As in the aftermath of all Strasbourg judgments in which Convention violations are found, the arena of contention then shifted to the Committee of Minsters, the body responsible for the supervision of implementation of judgments. In a series of decisions and interim resolutions, the Committee called upon Azerbaijan to fully remedy the situation and to immediately and unconditionally release Mr Mamamdov. Because of the violation of Article 18, the case was seen as so important that for many years it was discussed, and this is very exceptional (see the clear overview by Lize Glas here), at each of its human rights implementation meetings. As Başak Çali notes on Verfassungsblog in her comment on this week's judgment, Azerbaijan emphasized that the original judgment itself had not ordered it to release Mammadov. Such was the dragging of its feet by Azerbaijan, that eventually, in 2017, the discussion in the Committee reached its boiling point. A sufficient number of states (under Article 46(4) a two-thirds majority is necessary) simply lost patience and trust in Azerbaijan to such an extent that in June of that year the option of infringement proceedings was first floated. In September the Secretary-General of the Council of Europe, Thorbjørn Jagland, called upon the Committee to actually take that step and in October, Azerbaijan was notified of the Committee's intention to launch infringement proceedings. Finally, in December 2017 the proceedings were formally started. In its interim resolution, the Committee held:
"[B]y not having ensured the applicant’s unconditional release, the Republic of Azerbaijan refuses to abide by the final judgment of the Court; Decides to refer to the Court, in accordance with Article 46 § 4 of the Convention, the question whether the Republic of Azerbaijan has failed to fulfil its obligation under Article 46 § 1".
As a point of note, all of this relates to the first Mammadov judgment, although the developments surrounding the criminal trial against him (the issue of the second judgment) of course played a big role in assessing whether Azerbaijan was implementing judgment No. 1. Not in the least because of timing, as Mammadov No. 2 was issued in November 2017, right in between the Committee's notification of intention and the actual launch of the proceedings.
The judgment itself
And so the ball, or the hot potato, returned back to the premises of the European Court of Human Rights. And so the Court, taking up this new role, had to assess implementation of its own judgment, a function normally accorded to the Committee of Ministers in the Strasbourg system. By some the infringement procedure has been called a nuclear option, but this comparison no longer works as its very use in this case shows that the deterrent effect of its mere existence was not sufficient. Nor are its outcomes of the scale of a nuclear explosion. However, there was some effect, crucial for the applicant. While the Committee of Ministers kept the issue on its agenda and kept calling for its release and while the Court was considering the issue, on 13 August 2018, Mr Mammadov was released as a result of an Appeal's Court judgment in Azerbaijan. A year later, in March 2019, the Supreme Court amended this judgment, taking away the probationary conditions. But overall, the conviction still stood - even if no longer detained, Mr Mamadov still had a criminal record under domestic law.
In the procedure itself, apart from the applicant and the state, the Committee of Ministers also provided comments, all of them also giving input on the situation after Mammadov's release. The Court dismissed Azerbaijan's argument that as a result of the release, there was no longer a need to discuss the issue - specifically pointing to the fact that the Committee of Ministers had not decided to withdraw the proceedings (paras. 143-146).
As this was the first judgment of its kind, the Grand Chamber of the Court had to set out certain boundaries on how it would deal with the case. First, it tried to elucidate its own task under the infringement proceedings. From the drafting history of Protocol 14, it concluded that the main aim of such proceedings was to "increase the efficiency of the supervision proceedings – to improve and accelerate them." (para. 160). It also noted that the Committee of ministers had developed an extensive acquis in its supervision of implementation of judgments and found (para. 166):
"[T]there is no indication that the drafters of the Protocol aimed to displace the Committee of Ministers from its supervisory role. The infringement proceedings were not intended to upset the fundamental institutional balance between the Court and the Committee."
As to the material scope of what was to be considered under these infringement proceedings, the Court identifies that even if the Committee of Minister's request was wide, the supervision practice of the Committee shows that actually its focus was on the invidual measures (Mr Mamamdov's requested unconditional and immediate release) and that thus "the essential question in this case is whether there has been a failure by the Republic of Azerbaijan to adopt the individual measures required to abide by the Court’s judgment regarding the violation of Article 18 taken in conjunction with Article 5" (para. 176). The other elements in the case, of just satisfaction and of general measures, could in principle fall within the scope of infringement proceedings, but in this case they did not require "detailed examination" (para. 177). The former because the monetary compensation had been paid and the later "as a matter of procedure that any general measures required in the present case should be supervised in the context of other similar cases" (ibid.). The Court then goes on to mention that the Committee of Ministers is dealing with a number of other Article 18 cases against Azerbaijan. On the wider, systemic issues of the rule of law in Azerbaijan, the ball is thus kicked once again to the courtyard of the Committee of Ministers. This may be the most disappointing element of the judgment to some, as one might expect the Court, once the very heavy option of infringement proceedings is used by the Committee, that the Court obliges by going beyond the - in itself very important - finding of lack of "good faith"" in securing Convention rights by Azerbaijan. Maybe the hot potato metaphor is the best to use here after all... But then, others may argue this is not the Court´s role.
In then reviewing, within this limited material scope, whether Azerbaijan has complied with the Court's original judgment, the Court makes some very important points. It states that its own judgments are declaratory and rarely indicate specific measures to be taken. But "the absence of an explicit statement relevant to execution in the first Mammadov judgment is not decisive for the question whether there has been a failure by Azerbaijan to fulfil its obligations under Article 46 § 1. What is decisive is whether the measures taken by the respondent State are compatible with the conclusions and spirit of the Court’s judgment" (para. 186). In the particular case, since the imposition of charges against Mammadov had been contrary to Article 18, "the Court’s finding of a violation of Article 18 in conjunction with Article 5 of the Convention in the first Mammadov judgment vitiated any action resulting from the imposition of the charges" (para. 189). And in no way had Azerbaijan shown that it was impossible for it offer restitutio in integrum the situation along those lines (an exception granted under general international law, paras. 190-194). Here the Court buttresses the stance taken by the Committee of Ministers.
A separate issue was the temporal scope to be considered in answering whether a state complies with a judgment of the Court. On that issue, the Court decided that it would not assess ex nunc, but that the starting point should be the moment of referral to the Court by the Committee of Ministers (paras. 170-171). In this case, that moment was 5 December 2017 and thus before the release of Mammadov from prison and before the final domestic judicial decisions. Applying this restricted temporal delimitation, the Court mostly looked at the compensation paid and an initial action plan of Azerbaijan. The Court did also mention the release and the later domestic judgments, but notes that those postdate the start of the infringement proceedings (para. 2016). In conclusion, it holds that the limited steps taken are insufficient.
In both dimensions, material and temporal, the Court thus does not turn an entirely blind eye to the wider context (general measures, later developments), but neither does it evaluate it in detail. In that respect, this judgment, which should have helped to clarify, still leaves a lot of flexibiltiy (or unclarity, depending on how one looks at it). It certainly offers the possibility for the Committee of Ministers to be much more specific in future cases, if it wants the Court to pronounce itself on either a wider general measures to be implemented by the state or more recent implementation developments. The current judgment, through these limitations, in this sense leaves one with the feeling that the Court is only stating the very obvious (that Azerbaijan was clearly going against the Convention obligatinos by not acting in good faith) but still not unequivocally solving the case by giving a clear pronouncement on what would be sufficient action to be taken in the wider context. The result may be that Azerbaijan may just continue dragging its feet in the Committee of Ministers.
The Court ends by stating (para. 217):
"[T]hose limited steps do not permit the Court to conclude that the State party acted in “good faith”, in a manner compatible with the “conclusions and spirit” of the first Mammadov judgment, or in a way that would make practical and effective the protection of the Convention rights which the Court found to have been violated in that judgment."
A final point of note: while the judgment was unanimous, three concurring opinions, by no les than seven judges in total are attached to the judgment. Some the critiques of the Court´s reasoning are so strong and fundamental that - as Kanstantsin Dzehtsiarou tweeted soon after the judgment - two of those do not read as concurring opinions from a legal perspective. It seems that the importance of sending a unanimous signal to the state concerned in this crucial judgment even impacted the labelling of the opinions.
Conclusion: dark clouds remain
Within hours after the judgment, Mammadov was allowed to brief representatives of the Committee of Ministers through video conference (see the footage here). While he showed gratitude for the great help by the Council of Europe´s institutions, he still deplored that the Azerbaijani authorities do not allow him to run for political office nor have expunged his criminal record.
The Mammadov saga plays out against a background full of dark political clouds: the very contested role of Azerbaijan in Council of Europe bodies. Just last year, an independent report commissioned by the Parliamentary Assembly was published in which problems of corruption connected to Azerbaijan's wheeling and dealing in the Assembly itself were highlighted. Undoubtedly, the current infringement procedure gives new impetus to discussions, about that country and others, on the point at which the flouting of Council of Europe commitments and standards reaches such a crisis point that a state should be ousted from the organization. The huge dilemma remains the same however: whereas such a step might have some political effect to make a state change course, it would lead to barring off the Strasbourg Court as an institution of last resort for human rights victims in the countries at stake. It is not just the oil from a resource-rich country that has a foul smell and nasty stick in this case.
