On December 5, 2017, the Council of Europe’s (COE) Committee of Ministers triggered formal infringement proceedings against Azerbaijan for the State’s repeated refusal to comply with the 2014 judgment in the European Court of Human Rights (ECtHR) case of Ilgar Mammadov v. Azerbaijan. [Council of Europe Press Release] The next step is for the ECtHR to review Azerbaijan’s compliance with Article 1 (obligation to ensure the rights and freedoms of the Convention) of the European Convention on Human Rights (ECHR) in light of its previous ruling; if the Court finds the State in violation of the ECHR, Azerbaijan will be referred back to the Committee of Ministers, and it could lose its voting rights, or potentially even its membership, in the Council of Europe. See Statute of the Council of Europe (adopted 5 May 1949, entered into force 3 August 1949), ETS No. 001, art. 8. In the case that prompted the infringement proceedings, Ilgar Mammadov v. Azerbaijan, the ECtHR ruled that Azerbaijan’s detention of the political activist Ilgar Mammadov violates the right to liberty in the ECHR and is motivated by Azerbaijani officials’ desire to silence and punish Mammadov for criticizing the government; Mammadov remains in detention today. See ECtHR, Ilgar Mammadov v. Azerbaijan, no. 15172/13, ECHR 2014, Judgment of 22 May 2014, para. 143. [Council of Europe Press Release] This is the first time that the Committee of Ministers has initiated infringement proceedings, the only procedure by which Member States of the Council of Europe can be held accountable for failure to comply with a ECtHR’s judgment. [Council of Europe Press Release] The decision to bring infringement proceedings against Azerbaijan comes among continued concern over some countries’ non-enforcement of ECtHR judgments. See Pierre-Yves Le Borgen, Implementation of judgments of the European Court of Human Rights: 9th report (2017), para. 6. [EURACTIV; Open Dialogue Foundation]
Infringement Proceedings Against Azerbaijan
After adopting several resolutions calling for Mammadov’s release, the Committee of Ministers on October 25, 2017 presented Azerbaijan with formal notice of the Committee’s intention to begin infringement proceedings established in Article 46(4) of the ECHR, under which the Committee may by a two-thirds majority vote refer a previously decided case back to the ECtHR for a determination of whether the State has failed to fulfil its obligation to ensure the rights and freedoms the Court previously held to be violated. [Council of Europe Press Release] See COE Committee of Ministers, Interim Resolution CM/ResDH(2017)379, Execution of the judgment of the European Court of Human Rights: Ilgar Mammadov against Azerbaijan, 25 October 2017. With Mammadov still in custody, the Committee of Ministers formally triggered Article 46(4) of the ECHR on December 5, 2017, a procedure first established in 2010, and referred the Mammadov case to the ECtHR to determine whether Azerbaijan has failed to fulfill its obligations under the ECHR. See COE Committee of Ministers, Execution of the judgment of the European Court of Human Rights: Ilgar Mammadov against Azerbaijan.
Background on the Mammadov Case
Ilgar Mammadov is an Azerbaijani politician and blogger, who was arrested by Azerbaijani officials as a means of silencing and punishing Mammadov’s political activism. See Ilgar Mammadov v. Azerbaijan, Judgment of 22 May 2014, paras. 6-8, 143. On January 24, 2013, Mammadov, the co-founder of an opposition party named the Republican Alternative Civic Movement, traveled to the town of Ismayilli where a protest and riot had broken out the previous day. See id. at paras. 6, 9, 12. Mammadov published his impressions of the riot and its causes on his blog, which Mammadov had frequently used to criticize State officials. See id. at para. 12. Mammadov’s post challenged the official account of events and alleged that government “corruption and insolence” caused the protest and riot. See id. Government officials detained and charged Mammadov for the offense of organizing or actively engaging in actions causing a breach of public order. See id. at para. 27. After several extensions of Mammadov’s pre-trial detention, Mammadov was convicted of the charges and sentenced to seven years’ imprisonment. [ECtHR Press Release: Mammadov]
The ECtHR found that the legal basis of Mammadov’s detention was nonexistent, and that the primary motivations of the proceedings against Mammadov were retaliatory. See Ilgar Mammadov v. Azerbaijan, Judgment of 22 May 2014, para. 143. Accordingly, the ECtHR held that Azerbaijan’s treatment of Mammadov violated articles 5(1) (right to liberty and security), 5(4) (right to judicial review of one’s detention), 6(2) (right to presumption of innocence), and 18 (limitation on use of restrictions on rights), taken in conjunction with Article 5, of the ECHR. See id. at paras. 101, 119, 128, 144.
Article 46 Infringement Proceedings
In 2010, reforms to the ECHR granted the Committee of Ministers the power to initiate proceedings against a State that refuses to comply with a judgment of the ECtHR. See Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention (adopted 13 May 2004, entered into force 1 June 2010), CETS No. 194, art. 16. If after the Committee of Ministers refers a case back to the Court under Article 46 of the ECHR the ECtHR determines that the State has complied with the judgment, the Committee of Ministers must close its examination of the case. See id. at art. 46(5). However, if the ECtHR finds that the State is in violation of its obligations under the ECHR, the case will return to the Committee of Ministers who are authorized to take appropriate measures. See id. In dealing with Member State non-enforcement of ECtHR judgments, the Committee of Ministers has the power to suspend the voting rights of Member States and, if necessary, the power to remove Member States from the Council of Europe. See Statute of the Council of Europe (adopted 5 May 1949, entered into force 3 August 1949), ETS No. 001, art. 8.
Limitations on the Use of Restrictions of Rights & the Right to Liberty
Notably, the ECtHR has only found violations of Article 18 in seven cases, and in each decision, it found a violation of the article in conjunction with Article 5 (the right to liberty). [Council of Europe Press Release; ECtHR Press Release: Merabishvili] Article 18 establishes the principle that States parties to the ECHR may not restrict human rights for any purposes other than those provided for in the European Convention. See Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953), 213 UNTS 221 (European Convention on Human Rights, as amended), art. 18. In at least five of the six other cases in which the ECtHR found a violation of Article 18, in conjunction with Article 5, the applicants have since been released. [Council of Europe Press Release]
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