Ilgar Mammadov v. Azerbaijan [GC] (Infringement proceedings)


Information Note on the Court’s case-law 229
May 2019
Ilgar Mammadov v. Azerbaijan [GC] (Infringement proceedings) - 15172/13
Judgment 29.5.2019 [GC]
Article 46
Article 46-4
Infringement proceedings
Infringement proceedings against Azerbaijan for failure to abide by final judgment of the European Court: violation
Facts – In 2013 the applicant, an opposition politician, was charged with criminal offences and placed in pre-trial detention after commenting on political issues in his personal blog. In a judgment of 22 May 2014 (see Information Note 174) (hereafter “the first Mammadov judgment”), the European Court found a violation of the applicant’s rights under Article 5 § 1 (c), Article 4, Article 6 § 2 and Article 18 of the Convention.
The applicant was later convicted. In a judgment of 16 November 2017 (hereafter “the second Mammadov judgment” – see Ilgar Mammadov v. Azerbaijan (no. 2), 919/15), the Court found that the criminal proceedings concerning him had been unfair and in breach of Article 6 § 1.
The Committee of Ministers of the Council of Europe, which is responsible for supervising the execution of the Court’s judgments under Article 46 of the Convention, adopted a series of decisions and interim resolutions stressing the fundamental flaws in the criminal proceedings revealed by the Court’s conclusions under Article 18 of the Convention combined with Article 5 and calling for the applicant’s immediate and unconditional release.
On 5 December 2017 the Committee of Ministers decided to refer to the Court, in accordance with Article 46 § 4 of the Convention, the question whether the Republic of Azerbaijan had failed to fulfil its obligation under Article 46 § 1 to abide by the final judgments of the Court, and in particular the first Mammadov judgment.
The applicant was released on 13 August 2018 following a Court of Appeal judgment.
Law – Article 46: As this was the first time that the Committee of Ministers had initiated infringement proceedings, the Court clarified the nature of its own task in the light of the drafting history of Protocol No. 14 and the relevant legal framework for the execution process, namely Article 46 of the Convention.
The infringement proceedings were not designed to upset the fundamental institutional balance between the Court and the Committee of Ministers. The latter was competent to assess the specific measures to be taken by a State to ensure the maximum possible reparation for the violations found in a judgment. The Court’s task in infringement proceedings was to make a definitive legal assessment of the question of compliance with the judgment in question. Against that background, the Court would conduct its assessment having due regard to the Committee of Ministers’ conclusions in the supervision process, the position of the respondent Government and the submissions of the victim of the violation. The Court would have to identify the legal obligations flowing from the final judgment, as well as the conclusions and spirit of that judgment.
The date on which the Committee of Ministers referred a question to the Court concerning compliance with a judgment was the date by which it deemed that the State in question had refused to abide by a final judgment because the Committee could not consider the State’s actions to be “timely, adequate and sufficient”. The Court took the view that the starting-point for its examination should be the moment such a question was referred to it.
It was not excluded that the powers afforded to the Committee of Ministers under Article 46 also implied that the Committee could withdraw a case referred to the Court. However, the Committee had not done so following the applicant’s release.
(a)  The scope of the present infringement proceedings – The essential question was whether there had been a failure by the Republic of Azerbaijan to adopt the individual measures required to abide by the Court’s judgment and remedy the violation of Article 18 of the Convention taken in conjunction with Article 5.
(b)  Individual measures
(i)  The first Mammadov judgment
(α)  The text of the judgment: The Court’s findings of a violation of Article 5 § 1 (c) of the Convention and of Article 18 taken together with Article 5 applied to the totality of the charges and pre-trial proceedings against the applicant. The violation of Article 18 had occurred because the authorities’ actions had been driven by improper reasons, as they had imposed the charges in order to silence or punish the applicant for criticising the Government. That finding had vitiated any action resulting from the imposition of the charges.
(β)  The corresponding obligations on the State: The first Mammadov judgment and the corresponding obligation of restitutio in integrum had initially obliged the State to lift or annul the charges criticised by the Court as abusive, and to end the applicant’s pre-trial detention. In fact, his pre-trial detention had been brought to an end when he had been convicted by the first-instance court in March 2014; that conviction had been based wholly on the impugned charges. The fact that he had been detained based on that conviction (rather than detained in pre-trial detention) had not put him back in the position he would have been in had the requirements of the Convention not been disregarded. Restitutio in integrum had therefore still required that the negative consequences of the imposition of the impugned criminal charges be eliminated, including by the applicant’s release from detention.
The Government had never argued that there had been obstacles to achieving restitutio in integrum on the basis that it would be “materially impossible” or would involve a “burden out of all proportion”. Thus, there had been no obstacles to achieving restitutio in integrum in the present case.
(γ)  Conclusion: The corresponding obligation of restitutio in integrum had required Azerbaijan to eliminate the negative consequences of the imposition of the criminal charges criticised by the Court as abusive and to release Mr Mammadov from detention.
(ii)  Whether Azerbaijan had failed to fulfil its obligation under Article 46 § 1 to abide by a final judgment
(α)  Whether the individual measures had provided restitutio in integrum: By the time that the Committee of Ministers had referred the question to the Court, it had already been clear that the domestic proceedings had not provided redress. Indeed, when re-examining the applicant’s conviction in its judgment of 29 April 2016, the Court of Appeal had rejected as incorrect the Court’s findings in the first Mammadov judgment under Article 5 § 1 (c) and had made no reference to the other violations found, including that of Article 18 of the Convention in conjunction with Article 5. The Court of Appeal had found that sufficient evidence had been collected, and assessed comprehensively and objectively before the court of first instance. The Committee of Ministers had followed the proceedings before the domestic courts closely and had concluded that those courts had not eliminated the negative consequences caused by the violation of Article 18 in conjunction with Article 5 established in the first Mammadov judgment.
The Court had already concluded that its finding of a violation of Article 18 in conjunction with Article 5 in the first Mammadov judgment had vitiated the subsequent criminal proceedings. It had therefore been logical to seek to secure the applicant’s release urgently. Even assuming that for the purposes of restitutio in integrum it was sufficient to wait for the ensuing domestic proceedings to redress the problems found in that judgment, those domestic proceedings had not done so.
The defects identified in the first Mammadov judgment had later been confirmed by the Court in the second Mammadov judgment, in which it found that the applicant’s conviction had been based on flawed or misrepresented evidence.
Consequently, the Court considered that the effects of its finding of a violation of Article 18 of the Convention in conjunction with Article 5 in the first Mammadov judgment had not been displaced by the second Mammadov judgment, which in fact had confirmed the need for the individual measures required by the first Mammadov judgment.
The Government had presented the Court of Appeal judgment of 13 August 2018 as a means to eliminate the negative consequences of the imposition of the criminal charges criticised as abusive. However, the Court of Appeal had again rejected the findings of the Court and provided only for the applicant’s conditional release. That conditional release had later been set aside by the judgment of the Supreme Court of 28 March 2019, which considered that the applicant’s sentence had been fully served. The core reasoning of the Supreme Court’s judgment had confirmed, at the highest judicial level, the applicant’s conviction and the rejection of the European Court’s findings by the domestic courts.
(β)  Final considerations: The execution of the Court’s judgments should involve good faith on the part of the High Contracting Party. The whole structure of the Convention rested on that general assumption. That structure included the supervision procedure, and the execution of judgments should involve good faith and take place in a manner compatible with the “conclusions and spirit” of the judgment. Moreover, the importance of the good faith obligation was paramount where the Court had found a violation of Article 18, the object and purpose of which was to prohibit the misuse of power.
According to Protocol No. 14, rapid and full execution of the Court’s judgments was vital, for the protection of the applicant’s rights and because the Court’s authority and the system’s credibility both depended to a large extent on the effectiveness of this process.
Azerbaijan had taken some steps towards executing the first Mammadov judgment. It had put the just satisfaction awarded by the Court at the applicant’s disposal and had also presented an Action Plan in November 2014 which, in its view, set out measures capable of executing the judgment. On 13 August 2018 the Court of Appeal had released the applicant, albeit that release had been conditional and had imposed a number of restrictions for a period of nearly eight months until the measure had been set aside by the Supreme Court in its judgment of 28 March 2019. However, both judgments post-dated the referral to the Court of the question whether the respondent State had fulfilled its obligations pursuant to the first Mammadov judgment.
Those limited steps did not permit the Court to conclude that the State Party had acted in “good faith”, in a manner compatible with the “conclusions and spirit” of the first Mammadov judgment, or in a way that would make practical and effective the protection of the Convention rights which the Court had found to have been violated in that judgment.
The Court concluded that Azerbaijan had failed to fulfil its obligation under Article 46 § 1 to abide by the Ilgar Mammadov v. Azerbaijan judgment of 22 May 2014.
Conclusion: violation (unanimously).
 
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This summary by the Registry does not bind the Court.
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