On 5 December 2017 it finally happened: the Committee of Ministers of the Council of Europe (‘the Committee’) launched for the first time ever in the history of the European Convention of Human Rights (‘ECHR’) infringement proceedings for non-implementation of a judgment of the European Court of Human Rights (‘ECtHR’), namely against Azerbaijan concerning the Mammadov case. While this development has already, and rightly so, been described as “nuclear” and “historic” elsewhere in the blogosphere, it still warrants some further analysis.
Supervision of the execution of judgments of the ECtHR: Infringement proceedings
Under Article 46 § 2 ECHR, it is the Committee that supervises the execution of the judgments of the ECtHR. According to article 46 § 4 ECHR, it may refer to the Court the question whether a given member State has fulfilled its obligation to abide by a judgment in a case to which it is a party. These so-called infringement proceedings were introduced in 2010 under Protocol No° 14 to provide the Committee with a wider range of means of pressure so as to better secure the execution of the Court’s judgments. So far, however, launching such proceedings had remained a mere theoretical possibility. Despite calls from both civil society and scholars, the Committee, a political body made up by diplomats from each member State, had either been unwilling to use this mechanism, or had never attained the necessary two-thirds-majority required for such a court referral.
There certainly is no lack of execution problems in the Strasbourg system, and it seems that in the last years such problems have rather increased than decreased. It suffices to refer to the non-implementation of the 2009 Sejdic and Finci judgment by Bosnia and Herzegovina, the 12-year-long saga around the UK’s prisoner voting case Hirst (which, however, by now seems to have been resolved, albeit maybe not fully), the Russian opposition to judgments from the ECtHR, and Italy’s almost perpetual struggles to reform its judiciary after thousands of ECtHR’s judgments identifying structural problems that go back to the 1990s as only some of the most prominent examples, as well as the non-implementation by Ukraine of the Ivanov pilot judgment leading to the recent dismissal of more than 12.000 applications in the Burmych case. Yet it is only the Mammodov case which has now brought the Committee to take action under article 46 § 2 ECHR.
The Mammadov case
Ilgar Mammadov is an activist and opposition politician from Azerbaijan who was planning to run for president in 2013. He was arrested in early 2013 when he travelled to the Azerbaijani town of Ismayilli to witness ongoing protests, and then blogged about the events. He was charged with causing mass disorder, organisation or active participation in actions causing a breach of public order, as well as with resistance to or violence against public officials, and was sentenced to seven years’ imprisonment. Mr. Mammadov subsequently lodged an application with the ECtHR. The Court decided in May 2014 that the arrest and pre-trial detention of Ilgar Mammadov violated articles 5 § 1 c), 5 § 4, 6 § 2, as well as also article 18 ECHR. More specifically, the Court found that Mr. Mammadov had been arrested and detained without any evidence to reasonably suspect him of having committed a criminal offence, concluding that the actual purpose of his detention had rather been to silence or punish him for criticising the Government. When the Supreme Court of Azerbaijan notwithstanding upheld the prison sentence in November 2016, Mr. Mammadov lodged a second complaint with the ECtHR, claiming several violations in the criminal proceedings against him. Once again, the ECtHR then found that Azerbaijan had violated the Convention and identified shortcomings in the use of evidence against the applicant by the domestic courts (article 6 § 1 ECHR). Despite these two judgments rendered by the ECtHR, Mr. Mammadov still up to this very day remains in prison.
By way of reaction, the Committee has on various occasions called upon the Azerbaijani authorities in four interim resolutions to release him. The latest resolution of October 2017 then served as a ‘last warning’ that the Committee intended to launch infringement proceedings (cf. Interim Resolution CM/ResDH(2017)379, 25 October 2017). Azerbaijan responded with a statement saying that it did pay the just satisfaction the Court had ordered and did not consider the release of Mr. Mammadov to be necessary to abide by the judgment. In December 2017, the Committee then followed through with the threat and decided to refer the case to the Court (Interim Resolution CM/ResDH(2017)429, 5 December 2017), which decision forms the subject-matter of this short comment.
Why now? Why did the Committee decide to take this case to the Court? Compared to Hirst or the 1990’s Italian cases, the three years old judgment Mammadov is still fairly recent. In addition, the judgment only concerns one person in contrast to cases of systemic human rights violations in Russia, Turkey or the many people affected by the discriminatory voting regulations in Bosnia and Herzegovina mentioned above.
1. Ilgar Mammadov is a popular political figure.
Mr. Mammadov is a well-known opposition leader with a lot of support by both international organizations and by non-governmental human rights organizations. The international community has criticized his arrest as (being solely) politically motivated ever since the very beginning of his incarnation and issued numerous statements of concern. Besides statements by EU officials and the Secretary General of the Council of Europe, it was the European parliament that has passed a resolution condemning Mr. Mammadov’s detention. Organizations such as Amnesty International, Human Rights Watch and PEN, among others, issued press releases demanding Mr. Mammadov’s immediate release. Amnesty International and Human Rights Watch even went so far to specifically ask the Council of Europe to consider infringement proceedings – a step the organizations had never taken before. This wide range of support by significant reputable organizations made it a high profile, singular case. Hence, the members of the Committee had a specific person in mind when discussing the case, and were thus more willing to stand up for Mr. Mammadov than, for example, prisoners in the UK more generally serving regular criminal sentences.
What is more it might have been also the severity of the underlying violations of the Convention, amounting by now to a multiple-year prison sentence, but also involving a violation of article 18 ECHR, that made the Committee more willing to enforce the Court’s judgments.
2. Azerbaijan is an easier State to target than other non-complying member States
What is more is that Western European countries do probably enjoy a higher level of trust regarding their implementation rates, and, besides, have far more lobbying support among the other members of the Committee when it comes to unpleasant resolutions as compared to Azerbaijan. Besides, state representative in the Committee might be hesitant to push critical (and equally non-complying) States like the UK or the Russian Federation further away from accepting the Court’s jurisprudence by launching infringement proceedings against them. Azerbaijan, however, in contrast does not seem to have a comparable importance from the Committee’s perspective, and may neither possess the same degree of leverage vis-à-vis the Committee. Finally, Azerbaijan had already attracted a lot of negative attention within the Council due to a corruption scandal and the Parliamentary Assembly’s continued criticism of Azerbaijan’s lack of an independent judiciary. This weakened position made Azerbaijan generally, and the Mammadov case specifically, an almost obvious choice to launch infringement proceedings. Besides, such infringement proceedings are a ‘softer step’ as compared to applying sanctions such as the suspension of voting rights in the Council of Europe’s Parliamentary Assembly or, as ultima ratio, an expulsion from the Council. At the same time, such proceedings, especially when triggered for the first time ever, still send a very clear und unequivocal political message.
3. Determining Azerbaijan’s non-compliance is not complicated
According to article 46 § 1 ECHR States have to abide by the final judgment of the Court in any case to which they are parties. The ECtHR has clarified in its well-established case law that implementation requires to make reparation for the consequences of the breach in such a way as to restore, as far as possible, the situation existing before the breach, (restitutio in integrum, cf. e.g. Papamichalopoulos v. Greece, § 34). This entails – depending on the case – individual measures, general measures and/or payment of just satisfaction. In Mammadov, the Court had already concluded that the charges against the applicant were unfounded, and that the criminal proceedings brought against him had been unfair. The only way to remedy Mr. Mammadov’s individual situation is thus to release him from prison. Since he has not been released yet, the Court’s judgment is obviously not (yet) fully implemented. By comparison, a legal evaluation how to fully remedy a case concerning systemic human rights violations would, by far, be more complicated for both the Committee making a request under article 46 § 2 ECHR, and then eventually the Court.
What happens next?
This being the first attempt of infringement proceedings, human rights scholars will be excited to see how the ECtHR will handle the situation, how long a decision will take, what procedure the Court will follow, and what the ultimate decision will look like. The relevant articles of the ECHR do not include procedural rules.
Still, it is important to remember that these proceedings – as embarrassing as they are from a diplomatic standpoint – do not entail any kind of legal sanction. Provided the Court finds that Azerbaijan has not abided by the judgment, it “shall refer the case [back] to the Committee for consideration of the measures to be taken” (article 46 § 5). Then, the Committee could only put the case back on its own agenda. When negotiating and drafting Protocol° 14, member States had considered 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”. We will see if this perception proves to be right – and one cannot but hope that it does.
Still, the Committee has now opened the door for infringement proceedings. It will be interesting to see if, and in what kind of situations, the Committee will make use of infringement proceedings again, and how this development might change the supervision process in the future – and how the Committee of Ministers en tant que tel, as well as individual contracting parties of the ECHR will react should the Court find a lack of implementation, and should Azerbaijan then still not free Mr. Mammadov.