|H46-1 – Ilgar Mammadov v. Azerbaijan (Application No. 15172/13)
Proceedings before the European Court of Human Rights under Article 46 § 4 of the European Convention on Human Rights
Written comments presented by the Chair of the Committee of Ministers on the question raised under Article 46 § 4 of the Convention
- In these proceedings, the Committee of Ministers asks the Court to determine whether, by not having ensured the applicant’s unconditional release, the Republic of Azerbaijan is refusing to abide by the Court’s judgmentIlgar Mammadov v. Azerbaijan, No. 15172/13, 22 May 2014, and has thereby failed to fulfil its obligation under Article 46 § 1 of the Convention.
- The Court has held that, although it can in certain situations indicate the specific remedy or other measure to be taken by the respondent State, the finding by it of a violation is in principle declaratory (seeEgmez v. Cyprus (dec.), No. 12214/07, §§ 48-49, 18 September 2012). By Article 46 of the Convention, the High Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers (ibid.). It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects (see Pisano v. Italy (striking out) [GC], No. 36732/97, § 43, 24 October 2002 and Scozzari and Giunta v. Italy [GC], Nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII). These principles have formed the foundation of the constant practice of the Committee of Ministers in its role under Article 46 § 2 of the Convention and are reflected in Rule 6 § 2 of the Rules it has adopted for the supervision of the execution of judgments and of the terms of friendly settlements.
- In the present case the Court assessed the circumstances surrounding the applicant’s pre-trial detention between 4 February 2013, when he was refused permission to leave the Prosecutor General’s Office, and 4 November 2013, when the last order on the court file extending his detention expired. It found under Article 18 taken in combination with Article 5 as a whole (encompassing the complaints under Article 5 §§ 1 and 4) that, throughout this period, the charges against the applicant were not based on a “reasonable suspicion”, that the authorities had “not been able to demonstrate that they acted in good faith”, that “the applicant’s arrest was linked to specific blog posts” he had made, and that the “circumstances indicate that the actual purpose of the impugned measures was to silence or punish the applicant for criticising the Government and attempting to disseminate what he believed was the true information that the Government were trying to hide”.
- The Committee of Ministers considered that the violations found by the Court, and in particular that of Article 18 in conjunction with Article 5, challenged the foundation of the criminal proceedings against the applicant. At its first examination of the case it therefore called upon the authorities to ensure the applicant’s release without delay. The absence of remedial action has since led the Committee to request the applicant’s immediate release, on the basis that the proceedings were fundamentally flawed (see further below).
- It should be recalled that, prior to the delivery of the European Court’s judgment, on17 March 2014 the Sheki Court for Serious Crimes convicted the applicant of offences under Articles 220.1 and 315.2 of the Criminal Code and sentenced him to seven years’ imprisonment.
- The applicant appealed. On 24 September 2014 the Sheki Court of Appeal delivered its judgment, upholding the applicant’s conviction and sentence and essentially reiterating the reasoning of the first-instance court in respect of the charges against him. The judgment did not address any of the arguments raised in the applicant’s appeal or the findings of the European Court in its judgment of22 May 2014. The applicant’s lawyers lodged an appeal on points of law (cassation appeal) with the Supreme Court.
- It was while the appeal was pending before the Supreme Court, on 13 October 2014, that the European Court’s judgment became final and its execution subject to the Committee of Ministers’ supervision.
- On 26 November 2014 the Republic of Azerbaijan submitted an action plan for the execution of the judgment (DH-DD(2014)1450). Under the heading “Measures taken and planned to give effect to the Court’s judgment”, the Committee of Ministers was informed that the European Court’s judgment had been submitted to the Supreme Court to be taken into account during the examination of the applicant’s cassation appeal and also that a number of related training events were planned for judges and prosecutors.
- The Committee of Ministers examined the situation at its human rights meeting inDecember 2014. In the circumstances, it decided to call on the authorities to “ensure the applicant’s release without delay”. It also “invited the authorities to indicate the further measures taken or planned in order to give effect to the Court’s judgment and to erase rapidly, as far as possible, the remaining consequences for the applicant of the serious violations established”.
- When resuming its examination at the next human rights meeting inMarch 2015, the available information, which was not contradicted by the Government, was that the applicant remained in detention and that his cassation appeal to the Supreme Court had been postponed sine die. The Committee of Ministers repeated, “with insistence”, its calls from the previous meeting, marking the importance of the case by adopting an interim resolution.
- In the face of the continued postponementsine die of the cassation appeal before the Supreme Court, the Committee repeated its calls at the human rights meeting in June 2015. In September 2015, in a second interim resolution, the Committee called for the applicant’s immediate release and underlined the obligation of every member State to comply with its obligations under Article 3 of the Statute of the Council of Europe.
- By a decision of 13 October 2015, the Supreme Court partially allowed the applicant’s appeal on points of law, having found that the trial court’s rejection of the defence requests for the examination of additional defence witnesses and other evidence had been insufficiently reasoned and in breach of the domestic procedural rules and the requirements of Article 6 §§ 1 and 3(d) of the Convention. The Supreme Court therefore quashed the judgment of the Sheki Court of Appeal of 24 September 2014 and remitted the case to the same court for a re-examination on appeal. Having ordered this re-examination, the Supreme Court did not consider it necessary to take a position on the arguments advanced on behalf of the applicant regarding his innocence. It did not make any reference to the violations of the Convention found by the European Court.
- At the human rights meeting inDecember 2015, the Committee of Ministers noted that the Supreme Court in its judgment of 13 October 2015 had ordered only a partial cassation which did not appear to take into account the European Court’s findings, in particular under Article 18 taken together with Article 5. In these circumstances, and awaiting the outcome of the reopened proceedings, the Committee adopted at this meeting, and also in March 2016, further decisions insisting on the applicant’s release without further delay.
- On29 April 2016 the Sheki Court of Appeal delivered its judgment, upholding the applicant’s conviction and sentence. The Court of Appeal did not refer to the European Court’s finding of a violation of Article 18, although it did refer to the violations of Article 5 §§ 1 and 4, holding, however, that it was primarily for the national courts to determine the facts in a case and that in this case there had been sufficient evidence to convict the applicant.
- This continuing failure of the domestic authorities to release the applicant was noted by the Committee of Ministers at its human rights meeting inJune 2016, when it adopted a third interim resolution, declaring its “resolve to ensure, with all the means available to the Organisation, the Republic of Azerbaijan’s compliance with its obligations under this judgment” and deciding to examine the applicant’s situation at each of its regular and human rights meetings until he was released. Following this decision, the Committee has examined the applicant’s situation at all meetings although, with the exception of the interim resolution adopted on 25 October 2017, it has adopted decisions only at human rights meetings.
- In the decision taken inSeptember 2016 the Committee recalled the obligations of the Republic of Azerbaijan under Article 46 § 1 of the Convention and Article 3 of the Statute of the Council of Europe.
- The applicant’s lawyers lodged a further cassation appeal. By a decision of 18 November 2016, the Supreme Court upheld the Sheki Court of Appeal’s judgment of 29 April 2016. The Supreme Court referred to the European Court’s findings under Articles 18 and 5 but held that the Sheki Court of Appeal had comprehensively analysed the evidence and come to the conclusion that the applicant’s arrest was not linked to his role as an opposition politician or his criticism of the Government on his blog, but instead that the accusations were well founded.
- At the Committee of Minister’s next human rights meeting inDecember 2016, the Deputies deeply deplored that the criminal proceedings against the applicant had been concluded without the consequences of the violations found by the European Court having been drawn, and firmly reiterated, inter alia, that the continuing arbitrary detention of Ilgar Mammadov constituted a flagrant breach of the obligations under Article 46 § 1 of the Convention. Finally, they “affirmed their determination to ensure the implementation of the judgment by actively considering all the means at the disposal of the Organisation, including under Article 46, paragraph 4, of the … Convention”.
- Subsequently, the Republic of Azerbaijan submitted a second action plan, dated 14 February 2017 (DH-DD(2017)172), in which it informed the Committee of Ministers about an Executive Order which had been signed a few days before as a precursor to legislative reform of the criminal justice system. The Executive Order foresaw,inter alia, the elaboration within two months of draft legislation providing for the decriminalisation of certain crimes, particularly in the economic field, and “a wider application of substitution of remainder of imprisonment by lighter punishment, parole and suspended sentence”.
- At the human rights meeting inMarch 2017 the Committee reiterated its utmost concern that the applicant was still detained. Nonetheless, it took note “with interest of the Azerbaijani authorities’ commitment to examine all avenues discussed during the mission of the representative of the Secretary General to execute the Ilgar Mammadov judgment, as well as of the recent Presidential Executive Order foreseeing promising measures for the execution of this judgment”.
- The developments in the implementation of the Executive Order were followed at the next human rights meetings. At theJune 2017 meeting, the Committee of Ministers urged the authorities to submit the draft laws prepared pursuant to the Executive Order in time for adoption during the current Parliamentary session, which would continue until the end of that month, and stressed that what was required was the applicant’s unconditional release.
- The legislation was not adopted as urged by the Committee. At theSeptember 2017 human rights meeting it took note of detailed information about the intended legislative timetable, in particular that certain draft amendments to the Criminal Code had been sent to Parliament for adoption during the autumn session. It expressed, however, its gravest concern that, almost three years after the Court’s judgment became final, the applicant remained imprisoned.
- Against this background, the Deputies also instructed the Secretariat “to prepare a draft interim resolution giving formal notice to the Republic of Azerbaijan, as provided for under Article 46 § 4 of the Convention, of the Committee’s intention to bring before the Court the question whether Azerbaijan has failed to fulfil its obligation under Article 46 § 1” for consideration at their meeting on 25 October, should no tangible progress be made in the interim in ensuring the applicant’s release.
- At the Committee of Ministers’ regular meeting on25 October 2017, it adopted Interim Resolution CM/ResDH(2017)379, serving formal notice on the Republic of Azerbaijan of its intention on 5 December to refer to the Court, in accordance with Article 46 § 4, the question whether the Republic of Azerbaijan had failed to fulfil its obligation under Article 46 § 1.
- On5 December 2017, at the start of the human rights meeting, it adopted Interim Resolution CM/ResDH(2017)429, deciding to refer the question to the Court under Article 46 § 4. In both interim resolutions the Committee recited that “by not having ensured the applicant’s unconditional release, the Republic of Azerbaijan refuses to abide by the final judgment of the Court”.
- The legislative amendments in respect of the criminal justice system had in the meantime entered into force, on 1 December 2017. One of the amendments is the reduction to two-thirds of the proportion of a sentence of imprisonment in respect of a serious crime which must be served before the prisoner may apply for conditional release.
- By 4 August 2017 the applicant had served two thirds of his sentence and, following this legislative change, has the possibility to apply for conditional release. The fact that the applicant could now himself take steps to apply for release which, if granted, would be subject to conditions, was not considered sufficient by the Committee of Ministers. Instead, it affirmed in Interim ResolutionsCM/ResDH(2017)379 and CM/ResDH(2017)429 that the obligation under Article 46 § 1 requires the Republic of Azerbaijan to ensure the applicant’s unconditional release.
- At no stage since the judgment became final have the national authorities shown any sign of having drawn the consequences of the violations found by the Court, in particular under Article 18 taken in conjunction with Article 5, nor any intention of taking the necessary action. At this stage, well over three years since the judgment became final, the position can no longer be characterised as a delay in execution but instead must be recognised as a refusal to execute.
- Moreover, it appears from the views of the Republic of Azerbaijan, annexed to Interim ResolutionCM/ResDH(2017)429, that the authorities consider that the completion of the criminal proceedings and the payment of the just satisfaction awarded by the Court were all that was required in terms of individual measures to comply with the judgment.
- Against this background, and given the exceptional nature of the Court’s findings under Article 18 taken in conjunction with Article 5 and the pressing need to bring an end to Mr Mammadov’s detention, the Committee of Ministers has taken the decision to refer to the Court the question under Article 46 § 4 whether, in the circumstances recited in the above-mentioned Interim Resolution, the Republic of Azerbaijan has failed to fulfil its obligation under Article 46 § 1 of the Convention.