A year ago, on 17 March 2016, the European Court of Human Rights issued a landmark judgment against Azerbaijan finding a rare violation of Article 18 of the European Convention on Human Rights, and the first based on the repression of human rights defenders as a result of their human rights activities. The Court found that the pre-trial detention of a prominent Azerbaijani human rights defender, Rasul Jafarov, was unlawful and aimed ‘to punish the applicant for his activities in the area of human rights’, in violation of Article 18 (restrictions of rights for a purpose other than the one prescribed in the Convention) and also Article 5 (the right to liberty). That same day, after having spent 15 months in a prison cell, Rasul Jafarov was released under the presidential pardon decree.
In finding the violation of Article 18, the Court took note of the totality of repressive circumstances in which Azerbaijani human rights NGOs operated and the numerous statements of high ranking Azerbaijani officials criticising those NGOs and their leaders, including the applicant, and concluded that Jafarov’s case could not be viewed in isolation from this backdrop.
Although Article 18 cases are very rare in the Court’s practice, the Jafarov judgment is the second one in which the Court has found Azerbaijan’s actions in arresting its critics in violation of Article 18 of the Convention. In the case of opposition leader Ilgar Mammadov the Court established that his arrest and pre-trial detention aimed to punish him ‘for criticizing the Government’. Ilgar Mammadov has remained in prison for more than four years serving a seven-year sentence on charges of organising mass disorder and resisting arrest after he criticised the Government’s handling of demonstrations and unrest in the region of Ismayili.
Growing concern over Azerbaijan`s failure to implement `Article 18` judgments
Neither judgment has been fully implemented and both have been causing growing concern over Azerbaijan`s failure to comply, in violation of Article 46(1) of the Convention establishing the binding nature of the Court’s judgments. A year after the adoption of the judgment in the case of Rasul Jafarov, the Government has failed to pay monetary compensation ordered by the Court. This comes as a new worrying development in Azerbaijan’s compliance with individual measures, given Azerbaijan`s earlier record of timely payments.
Furthermore, the applicant’s request to the Supreme Court to reopen a criminal case that led to his conviction on the basis of the Strasbourg Court’s judgment was dismissed as groundless. Rasul Jafarov referred to the Criminal Code provisions allowing for a re-opening of a criminal case on the basis of the Strasbourg judgment as ‘a newly found circumstance’. The Supreme Court, however, was of the opinion that the judgment only applies to pre-trial detention. It failed to address the Strasbourg Court’s arguments under Article 18 stipulating the absence of any legal grounds for the applicant`s prosecution, which led it to be:
… unconvinced that such misconduct could have given rise to a reasonable suspicion that [the applicant] had committed a criminal offence. Neither the domestic authorities nor the Government were able to refer to any provision of the Criminal Code which specifically criminalises a failure to register grants. (para 125)
The same argument has been used by the Azerbaijani Government in its rejection of the repeated calls of the Committee of Ministers for the release of Ilgar Mammadov. Azerbaijan’s failure to release him has become a real challenge to the Committee in its supervision of the implementation of the judgment, and to the whole Convention system. Azerbaijan’s rejection of the Committee’s position has sparked debates on the importance of states’ collective responsibility in protecting the values and the credibility of the Convention system, and on the steps that should be taken against a member state that persistently fails to comply with its legal obligations. As Thorbjørn Jagland, the Secretary General of the Council of Europe (CoE) noted in April 2016, ‘depriving a person of his or her liberty on the basis of a flawed judgment is an attack on the human rights system we have in Europe.’
In December 2015, the Secretary General decided to initiate a special inquiry into Azerbaijan’s compliance with the Mammadov judgment under Article 52 of the Convention, the first such inquiry in relation to an individual case. In June 2016, the Committee decided to put the case of Ilgar Mammadov on the agenda of its weekly meetings, along with its quarterly Human Rights meetings (where the implementation of the Court`s judgments is discussed) until Mammadov is released. As neither course of action led to any meaningful dialogue with Azerbaijan or produced any tangible results, support for initiating infringement proceedings against Azerbaijan under Article 46(4) of the Convention is gathering momentum at the Committee (although at its most recent Human Rights meeting, this course of action was not taken).
Azerbaijan as a test case for infringement proceedings
Under Article 46(4), if the Committee of Ministers considers that a state refuses to abide by a judgment, it may refer to the Court the question of whether the state has failed to fulfil its obligation under Article 46(1). This mechanism was introduced by Protocol 14 in order to strengthen the measures available to the Committee of Ministers to deal with recalcitrant states, in particular in relation to cases concerning structural problems. However, to date, it has not been used, in part because of the two-thirds majority on the Committee of Ministers required to invoke it and the perception that it is a ‘last resort’ measure. However this is to miss the point that it was, in fact, introduced by member states as an intermediate measure to provide an alternative to the extreme step of suspension of voting rights or even expulsion. More broadly, there remains scepticism about both the utility and feasibility of using the infringement proceedings, lest it cause further resistance by states.
The Committee, however, may ultimately consider that it has no other choice but to initiate infringement proceedings in the case of Ilgar Mammadov. It is hard to imagine a more blatant and persistent refusal to implement a judgment, particularly given that the necessary individual measure, the release of the applicant, is not onerous on the State. As no previous intervention of the CoE had led to any positive outcome, infringement proceedings would send a strong political message to Azerbaijan that the CoE will not tolerate such disrespect of its values and the states’ unconditional legal obligations.
The infringement proceedings would escalate the matter in respect of Azerbaijan’s relationship to other Convention member states. As Christos Giakoumopoulos, the Director of the Human Rights Directorate of the CoE noted at the launch event of the European Implementation Network in December 2016, the Court’s finding of a violation of Article 46(4) of the Convention would transform the matter from an individual human rights issue (as dealt with in the original judgment) into an issue of the international responsibility of a State Party vis-a-vis the other High Contracting Parties to the Convention.
Two Article 18 judgments, several other communicated cases relating to alleged violations of Articles 5 and 18 against Azerbaijan, and well-documented political persecution of the critical voices, including civil society, by the Azerbaijani authorities signals the existence of a systemic issue of the rule of law, one of the core values of the CoE. Against such a backdrop, the state’s refusal to implement legally binding judgments and its acting in bad faith in complying with its international obligations raises serious questions about its willingness to abide by Convention norms. As Judge Helen Keller and Corina Heri recently argued, the very significance of the finding of a violation of Article 18 lies in the challenge it poses to undemocratic and even ‘totalitarian’ measures taken by states.
Such a situation leaves the Committee of Ministers and the CoE at a crossroads: are they prepared to use the tools available to them and take a firm stance to protect the very credibility of the Convention system that Azerbaijan’s behaviour endangers? As the red line indicated by Article 46(4) was crossed a long time ago, it is for the ‘collective responsibility’ to ensure that such fundamental values as the right to liberty are secured in Europe. Should the infringement proceedings yield no tangible results, Azerbaijan could risk suspension or expulsion from the CoE. Article 3 of the Statute of the Council of Europe stipulates that every member state must accept the principles of the rule of law and respect for human rights, and collaborate sincerely and effectively in the realisation of the aim of the CoE. Under Article 8, a serious violation of Article 3 could lead to the state’s suspension and a request for it to withdraw from the Convention system. Such an outcome should be of no interest to the Government of Azerbaijan, which has enjoyed the continuous expert support of the CoE for over two decades; it certainly would be of no benefit to Azerbaijani citizens, for many of whom the Strasbourg Court is often the only effective judicial remedy for their violated rights.