magnify
Home Posts tagged "Azerbaijan"

Has the ECtHR in Mammadov 46(4) opened the door to findings of  ‘bad faith’ in trials?

Published on July 4, 2019        Author:  and

In the recent judgment of the European Court of Human Rights (the Court) in Ilgar Mammadov v Azerbaijan  (Mammadov 46(4)) examined under Article 46(4) infringement proceedings, the Grand Chamber found that Azerbaijan had failed to comply with the Court’s original judgment in Ilgar Mammadov (Mammadov No.1) by refusing to release political activist Ilgar Mammadov, who was arrested on politically motivated charges (in violation of a right to liberty and security under Articles 5 and the  prohibition to restrict rights for purposes other than those prescribed by the Convention under Article 18 of the Convention).

This case is not only novel in being the first to be considered under infringement proceedings (see blogs by Başak Çali and Kanstantsin Dzehtsiarou), but is also highly significant for the Court’s approach to the implications of politically motivated proceedings.  Until now the Court has been reluctant to clarify its position on whether trials and convictions can be explicitly held to be in ‘bad faith’ under Article 18 of the Convention. We argue in this blog that the Grand Chamber in this case (relating to Mr Mammadov’s arrest and pre-trial detention), went substantially further than the Chamber in the second case of the same applicant, Mammadov No. 2 (relating to his trial and conviction), and has paved the way for the Court to finally open the door to the applicability of Article 18 to a right to fair trial under Article 6, or risk incoherence. 

The Court’s approach so far to Article 18

Article 18 of the Convention provides that ‘The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.’ There is debate about whether the wording of the provision limits its applicability to ‘restricted’ rights under Articles 5 and 8-11 of the Convention (see below). Read the rest of this entry…

 
Comments Off on Has the ECtHR in Mammadov 46(4) opened the door to findings of  ‘bad faith’ in trials?

Council of Europe’s Committee of Ministers Starts Infringement Proceedings in Mammadov v. Azerbaijan: A Victory for the International Rule of Law?

Published on February 5, 2018        Author:  and

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. Read the rest of this entry…