The first of many Mammadovs? Reflections on the ECHR infringement procedure

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For the first time, the Committee of Ministers has initiated infringement proceedings under Article 46 European Convention on Human Rights (ECHR). It did so in the case of Ilgar Mammadov, an Azerbaijani activist and politician who has spent 1205 days in prison. The European Court of Human Rights (ECtHR) deemed this prison time to be a measure designed by the government to “silence or punish” him. Time to reflect on the proceedings’ potential.

For years now, Ilgar Mammadov has been causing headaches within the Council of Europe. The Azerbaijani activist and politician was arrested in 2013, shortly after announcing that he might challenge Ilham Aliyev in that year’s presidential race. Mammadov was charged with “breaching the public order” and resisting arrest, in response to government-critical blogposts regarding protests in the city of Ismayilli. In the subsequent trial he was convicted to seven years in prison. The ECtHR was invited to assess Mammadov’s treatment by Azerbaijan on two occasions. First, in 2014, it ruled that his arrest and pre-trial detention had violated articles 5(1), 5(4) and 6(2) ECHR. This due to an absence of any reasonable suspicion and a lack of genuine legal review. Strikingly, the ECtHR also found a violation of article 18 ECHR (in conjunction with article 5 ECHR) because the “circumstances indicate that the actual purpose of the impugned measures was to silence or punish the applicant”. In its 2017 judgment, it held that the consequent trial and conviction violated article 6(1) ECHR.

The judgment of 29 May 2019

Since the 2014 judgment, different actors within the Council of Europe have closely monitored Mammadov’s situation and have repeatedly called for his unconditional release. In December 2017, as Azerbaijan did not comply with that demand, a two thirds majority of the Committee of Ministers initiated the first ever infringement proceedings under article 46(4) ECHR – nicknamed “the nuclear option”. Through these proceedings the Committee asks the ECtHR to confirm that a state has failed to abide by a judgment. Shortly after, and arguably not at all coincidentally, an Azerbaijani court reduced Mammadov’s sentence and ordered his release. Thus, by the time the article 46 ECHR-application appeared before the ECtHR, there were three crucial questions:

i) would the Court find a violation of article 46, even though it hadn’t explicitly ordered Mammadov’s release in its 2014 judgment,

(ii) was there a violation, even though Mammadov had been released in the meantime, and

(iii) would the Court include any statements that went beyond this individual case, considering the general problem in Azerbaijan of arbitrary criminal procedures against critical voices?

In its judgment of May 2019, the ECtHR established a violation of article 46(1) by Azerbaijan, concluding that its 2014 judgment “vitiated any action resulting from the imposition of the charges” and that his prolonged detention showed a lack of good faith (§189, 217). It thus set aside the fact that Mammadov was no longer detained at that point, emphasizing that he had been when the article 46-proceedings were initiated (§145). The Court also reminded Azerbaijan that it only rarely dictates which measures states need to take to remedy a violation. As the Court has emphasized before (Öcalan v. Turkey, §210), it is up to the member states to decide which measures are necessary to implement a judgment, and up to the Committee to monitor this process (§148-155).

The ECtHR was brief with regards to the general measures that would address the fundamental flaws in Azerbaijan’s criminal system: it simply referred to the Committee’s ongoing supervision in the cases of Mammadov, Aliyev, Jafarov and others (§179). Some will be disappointed by this referral (or deferral?), as they had hoped that the ECtHR would have been more strict for Azerbaijan. A judgment in which the Court strongly condemned the arbitrary prosecution of critical voices in Azerbaijan was on many wish lists. Yet it seems that the Court does not deem that to be its role, or at least that it wants the Committee to formulate a referral more clearly if it wants the court to assess general measures. We might have to wait for a second article 46(4)-referral to clarify whether the Committee is willing to ask for such an assessment, and the Court to respond to it. Whether such an application can be expected soon is doubtful, as only the specifics of this case (an article 18 ECHR-violation by a smaller state, with an obvious, individual solution) made referral feasible.

Not so nuclear

So where do we stand now? Some might argue that the Article 46(4) ECHR-proceedings have worked, as Ilgar Mammadov is once again free. Yet many of the consequences of this affair – and many similar affairs – persist. First of all, Mammadov reportedly remained on probation until early 2019, and as far as we know, his criminal record has not been cleared. Secondly, reports indicate that Mammadov is still being monitored and that his attempts to communicate with the outside world are being obstructed (e.g. blocked on social media, press conference prevented, passport refused). Thirdly, it seems that he still has not been reimbursed after the 2017 judgment (EUR 10,000 in non-pecuniary damage). In addition, no damages have been awarded for his time in detention after the 2017 judgment. A lengthy process awaits Mammadov in the uncooperative Azerbaijani judicial system should he want any of these issues remedied. Fourthly, Mammadov’s detention prevented him from running in the 2018 presidential election; the first election after a constitutional referendum that extended the presidential term to seven years. The next elections are in 2025.

Finally, and most importantly, this case once again displays the difficulties for the Committee of Ministers to get – even the most blatantly – unfaithful states back in line. There was a clear and deliberate violation of the ECHR and Azerbaijan tried every trick in the book to hinder review. Yet the Committee lacks appropriate tools to respond to such behavior. The drafters of Protocol n° 14 had hoped that the mere threat of the “nuclear optionwould incentivize states to respect judgments. As we now know, that won’t always do the trick. We can also expect little willingness within the Committee to use the remaining options. Suspension and expulsion (art. 8 Statute CoE) did not get sufficient support prior to December 2017. Chances are slim that they do now, after Mammadov’s release. Besides, there is no certainty that these options would be more effective in fostering respect for human rights than the current approach. Alternative tools, such as the possibility to fine a state for violating article 46(4) ECHR, eventually were not included in Protocol n° 14.

Business as usual

The Committee’s most recent meetings seem to indicate that it’s back to business as usual. At its latest meeting – where it considered the 2019-judgment in-depth for the first time – the Committee once again “underlined” that Azerbaijan must eliminate the negative consequences of Mammadov and other applicants’ arbitrary arrests. It “expressed regret” that parts of the damages had still not been paid. The Committee “noted with interest” the updated Azerbaijani action plan and will be analyzing the information provided for examination at the December 2019 session. The Committee strikes an optimistic tone (understandably, considering much of its power is soft), yet there must be serious concern behind the scenes about the remaining strategies regarding disloyal states like Azerbaijan.

Azerbaijan does not seem to have really changed its ways, as reports of new vindictive prosecutions have kept coming in. How that affects the credibility of the article 46(4)-procedure is difficult to measure, but it is safe to say that the label “nuclear” was quite the exaggeration. Willfully disobedient states, especially those with more (financial) muscle to flex within the Council of Europe framework, must be watching the post-Mammadov developments. If this is all the article 46(4)-procedure can do, they might conceivably take advantage of that. Once they do, there will be no other option but to reopen the debate on additional ways to motivate states to comply. Maybe now that political pressure related to infringement proceedings has clearly proven insufficient to guarantee implementation of judgments, member states will be willing to include a system of fines. However, whether they will allow fines that are not merely symbolic, but can actually incentivize states to comply, remains to be seen.

Jonas Vernimmen is a PhD-candidate at the Leuven Centre for Public Law, where he works on the rights of ethnic and cultural minorities under the European Convention on Human Rights.


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