MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1348/H46-1

6 June 2019

1348th meeting, 4-6 June 2019 (DH) Human rights   H46-1 Ilgar Mammadov group v. Azerbaijan Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2017)172, DD(2017)1346, DD(2018)777, DH-DD(2018)816, DH-DD(2018)893, DD(2018)405, DD(2018)476, DH-DD(2018)1097, DD(2019)353, CM/ResDH(2015)43, CM/ResDH(2015)156, CM/ResDH(2016)144, CM/ResDH(2017)379, CM/ResDH(2017)429, CM(2018)23, CM/Del/Dec(2019)1344/H46-1

 

Application	Case	Judgment of	Final on	Indicator for the classification
15172/13	ILGAR MAMMADOV	22/05/2014	13/10/2014	Complex problem and urgent individual measures
69981/14	RASUL JAFAROV	17/03/2016	04/07/2016
919/15	ILGAR MAMMADOV (No. 2)	16/11/2017	05/03/2018
47145/14	MAMMADLI	19/04/2018	19/07/2018
48653/13+	RASHAD HASANOV AND OTHERS	07/06/2018	07/09/2018
68762/14+	ALIYEV	20/09/2018	04/02/2019

Case description

The applicants in this group are an opposition politician (Mr Ilgar Mammadov) and a number of civil society activists and human-rights defenders (Mr Rasul Jafarov, Mr Anar Mammadli, Mr Rashad Hasanov, Mr Zaur Gurbanli, Mr Uzeyir Mammadli, Mr Rashadat Akhundov and Mr Intigam Aliyev). They were all the subject of criminal proceedings which the European Court found to constitute a misuse of criminal law, intended to punish and silence them.

Thus, the European Court found that the arrest and detention of each applicant took place in the absence of any reasonable suspicion that he had committed an offence (violations of Article 5 § 1 (c)). It also found that the domestic courts had not conducted a genuine review of the lawfulness of the detention (violations of Article 5 § 4 in Ilgar Mammadov, Rasul Jafarov, Mammadli and Aliyev).

The Court further concluded that the actual purpose of the impugned measures was to punish the applicants for having criticised the government (Ilgar Mammadov); for their activities in the area of human rights or electoral monitoring (Rasul Jafarov, Aliyev, Mammadli); for their active social and political engagement (Rashad Hasanov and others); or to prevent further work as a human rights defender (Aliyev). The Court thus established that the restriction of the applicants’ rights was applied for purposes other than those prescribed by the Convention (violations of Article 18 taken in conjunction with Article 5 in Ilgar Mammadov, Rasul Jafarov, Mammadli, Rashad Hasanov and Others;violation of Article 18 taken in conjunction with Articles 5 and 8 in Aliyev).

In the Ilgar Mammadov case the Court also found a violation of the applicant’s right to the presumption of innocence because of statements made to the press by the Prosecutor General and the Minister of the Interior encouraging the public to believe that he was guilty (violation of Article 6 § 2). In Ilgar Mammadov (No. 2), it examined the applicant’s trial, conviction and appeal proceedings and found the that the conviction was based on flawed or misrepresented evidence, with the evidence favourable to the applicant systematically dismissed in an inadequately reasoned or manifestly unreasonable manner and none of these shortcomings remedied on appeal (violation of Article 6 § 1).

In the case of Aliyev, the Court established that the search and seizure operations at the applicant’s home and office did not pursue the legitimate aims prescribed by the Convention (violation of Article 8 § 2). It also found a violation of Article 3 because of the degrading conditions in which he was detained in the Baku pre-trial detention facility from 9 to 12 August 2014.

Finally, in the case of Rasul Jafarov, the Court also found a violation of the right of individual petition following the suspension of the licence to practice as a lawyer of the applicant’s representative (violation of Article 34).

In the Aliyev judgment, under Article 46 of the Convention, the Court noted with concern that the events under examination in the five cases in this group in which it had found violations of Article 18[1] could not be considered as isolated incidents, but reflected a troubling pattern of arbitrary arrest and detention of government critics, civil society activists and human-rights defenders through retaliatory prosecutions and misuse of criminal law in defiance of the rule of law, and that the actions of the State gave rise to a risk of further repetitive applications. It also stressed, as a matter of concern, that the domestic courts, being the ultimate guardians of the rule of law, systematically failed to protect the applicants against arbitrary arrest and continued pre-trial detention, limiting their role to one of mere automatic endorsement of the prosecution’s applications to detain the applicants without any genuine judicial oversight.

The Court concluded that the necessary general measures to be taken by the respondent State should focus, as a matter of priority, on the protection of critics of the government, civil society activists and human-rights defenders against arbitrary arrest and detention and ensure the eradication of retaliatory prosecutions and misuse of criminal law against this group of individuals and the non‑repetition of similar practices in the future.

Also in the Aliyev judgment, the Court indicated under Article 46 that the individual measures should be feasible, timely, adequate and sufficient to ensure the maximum possible reparation for the violations found. They should put the applicant, as far as possible, in the position in which he had been before his arrest, including by restoring his professional activities.

Status of execution

Individual measures

(1)   Payment of the just satisfaction

The just satisfaction awarded in the first Ilgar Mammadov judgment has been paid in full, and that awarded in the Rasul Jafarov case has been partially paid. Information is awaited as regards the payment of the outstanding sums awarded in the judgments in this group.

In separate communications to the Committee of Ministers under Rule 9 of its Rules for the Supervision of the Execution of Judgments, complaints were made about the non-payment of the just satisfaction awarded to Ilgar Mammadov, Rasul Jafarov, Anar Mammadli and Intigam Aliyev (see DH-DD(2019)553,
DH-DD(2019)536, DH-DD(2019)545 and DH-DD(2019)543).

(2)   Restitutio in integrum, including release from detention and reopening of the impugned proceedings

As regards the Ilgar Mammadov case, on 5 December 2017,[2] the Committee adopted Interim Resolution CM/ResDH(2017)429, in which, considering that “by not having ensured the applicant’s unconditional release, the Republic of Azerbaijan refuses to abide by the final judgment of the Court”, it decided to refer to the Court, in accordance with Article 46 § 4 of the Convention, the question “whether the Republic of Azerbaijan has failed to fulfil its obligation under Article 46 § 1”.

In a letter dated 14 August 2018 (DD(2018)777), the Agent of the Government of Azerbaijan reported that, in proceedings which followed the judgment of the European Court of Human Rights in Ilgar Mammadov v. Azerbaijan (No. 2) (which became final on 5 March 2018), the Plenum of the Supreme Court, on 29 June 2018, quashed its previous decisions and those of the Shaki Court of Appeal concerning the applicant’s conviction, and remitted the case to the Shaki Court of Appeal. It was also reported in the letter that on 13 August 2018 the Shaki Court of Appeal decided to commute the applicant’s sentence of imprisonment and to release him conditionally with a two-year probation period (a courtesy translation into English of the Court of Appeal’s judgment can be found in DH-DD(2018)893).

Following the applicant’s cassation appeal, on 28 March 2019 the Supreme Court amended the decision of the Shaki Court of Appeal of 13 August 2018. It upheld the applicant’s convictions for the offences of organisation of mass riots and resisting the police, but reduced the cumulative sentences to a total of five years’, six months’ and nine days’ imprisonment, which the applicant had already served. In addition, the probation conditions attached to his release were lifted. However, as a person convicted of a serious crime, the applicant is banned from running for political office until August 2026. A translation into English of the operative part of the Supreme Court judgment was provided by the authorities (see DH-DD(2019)511), and a translation of the full judgment is awaited.

The applicant complains that there was no recognition by the Supreme Court of the violations found by the Court, instead it reduced his sentence on grounds of his good behaviour. Nor has there been any acknowledgement by the government of the Court’s finding that his detention served the improper purpose of silencing him. The consequences of the violations have not been erased; as an opposition politician he already had to miss parliamentary elections in 2015 and 2016 and presidential elections in 2018 (see
DH-DD(2019)553).

At their meeting on 24 April 2019, in light of the information provided concerning the release of the applicant, the Deputies decided to continue their examination of this item in the context of the Committee of Ministers’ Human Rights meetings.[3]

The other applicants are also out of detention: Zaur Gurbanli and Uzeyir Mammadli were released by presidential decree on 29 December 2014; Rashad Hasanov, Rashadat Akhundov, Rasul Jafarov and Anar Mammadli were released by presidential decree on 17 March 2016; and, following the reduction of his sentence by the Supreme Court, Intigam Aliyev was released on 28 March 2016, subject to a five-year probation period (see DH-DD(2019)543).

In decisions adopted at the DH meetings in March and June 2017 in respect of Rasul Jafarov, the Committee asked for information from the authorities about the rejection by the national courts of his request for the reopening of the criminal proceedings against him. In their submissions of May 2019 (DH-DD(2019)536), MrJafarov’s representatives informed the Committee that, by a letter of 5 March 2019, the Supreme Court of Azerbaijan dismissed the new request to annul his conviction which he had filed in January 2019.

In a Rule 9 submission, the Election Monitoring and Democracy Studies Centre pointed out that Mr Mammadli’s conviction still stood and that he was thereby deprived of the right to stand as a candidate for election (see DH-DD(2019)545).

Intigam Aliyev’s representatives similarly complain about his conviction and the conditions attached to his release. They further complain that he is unable to resume his work as a lawyer and activist because legal and financial documents and computer equipment seized during the search of his home and office (which the European Court found to have violated Article 8) have not been returned, his office was sealed by the prosecutor’s office and remains inaccessible and the bank account of his NGO also remains frozen (see DH-DD(2019)543).

On 29 May 2019 the Court issued its judgment in the proceedings under Article 46 § 4, finding that there has been a violation of Article 46 § 1 by Azerbaijan in this case. In reaching this conclusion it stated that it “has analysed the nature of the finding of the violation of Article 18 in conjunction with Article 5 in the first Mammadov judgment and identified the corresponding obligation of restitutio in integrum falling upon Azerbaijan under Article 46 § 1 as requiring 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” (§ 195).

General measures

During its first examination of the Ilgar Mammadov case in December 2014, the Committee recalled the general problem of the arbitrary application of criminal law to restrict freedom of expression and conveyed its particular concern regarding the finding of a violation of Article 18 in conjunction with Article 5, to the extent that the proceedings against the applicant were engaged in order to silence or punish him for criticising the government. Therefore, it called upon the Azerbaijani authorities to furnish, without delay, concrete and comprehensive information on the measures taken and/or planned to avoid criminal proceedings being instituted without a legitimate basis and to ensure effective judicial review of such attempts by the Prosecutor General’s Office.

The Committee repeated these requests at its subsequent examinations of the Ilgar Mammadov case. In December 2016, the Deputies adopted a decision expressing their deep concern about the absence of any information from the authorities concerning the general measures taken or envisaged to prevent violations of the rule of law through abuse of power of the kind established in the European Court’s judgment and encouraged Azerbaijan to engage in meaningful dialogue with the Committee of Ministers.

On 14 February 2017 the authorities submitted an action plan (DH-DD(2017)172) which highlighted the Executive Order signed by the President of Azerbaijan on 10 February 2017. The Executive Order included an extension of the use of non-custodial measures of restraint pre-trial and a recommendation to the courts that they examine the existence of reasonable suspicion that the accused committed an offence when deciding on measures of restraint. It stated, inter alia, that “principles of criminal law and general grounds of sentencing shall be strictly complied with; non-procedural attitudes during criminal prosecution and execution of sentences eliminated; and stricter measures to fight corruption and abuse of power implemented”. It also provided for a wider application of substitution of the remainder of imprisonment by lighter punishment, parole and suspended sentence.

At its 1294^th meeting (September 2017) (DH), the Committee noted this information with interest and invited the authorities to provide detailed information about the legislative amendments and about other measures foreseen in the Presidential Order of relevance for the prevention of violations of the rule of law through abuse of power of the kind established in the judgments in this group. The authorities subsequently informed the Committee that, in addition to a number of measures taken pursuant to the Executive Order, on 20 October 2017 the National Assembly had adopted the Law on Amendments to the Criminal Code, decriminalising certain acts and creating the possibility for those convicted for serious crimes to apply for conditional release after having served two-thirds of a criminal sentence.

Analysis by the Secretariat

Individual measures

(1)   Payment of the just satisfaction

It should be recalled that the payment of just satisfaction is an unconditional obligation. The authorities should be requested to pay the amounts still owing to the applicants in this group, including any default interest which has accrued, and inform the Committee accordingly.

(2)   Restitutio in integrum

It is a fundamental principle of the European Convention system that the primary aim of individual measures is to achieve restitutio in integrum, that is, to put an end to the breach of the Convention and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. In the present cases, given the nature of the violations found by the Court, in order to provide restitutio in integrum, the consequences of the impugned criminal proceedings brought against the applicants should be erased as far as possible.  

This has been the principle underlying the Committee’s supervision over the individual measures in the Ilgar Mammadov so far, with particular urgency given to ensuring his unconditional release from detention. This principle was also referred to by the Court in the Aliyev judgment (§§ 227-228), when it made it clear that measures were required to put the applicant as far as possible in the position he had been in before his arrest, including by restoring his professional activities. It is further supported by the Court’s finding in its judgment in the Article 46 § 4 proceedings that its “finding of a violation of Article 18 in conjunction with Article 5 of the Convention in the first Mammadov judgment vitiated any action resulting from the imposition of the charges” (§ 189).

Although all the applicants are now out of detention, from the information available it appears that all their convictions still stand, despite the European Court’s findings about the absence of any reasonable suspicion to support the charges against them. At least one of the applicants (Intigam Aliyev) is still subject to conditions imposed at the time of his release. As persons convicted of serious criminal offences, the applicants are banned from standing for political office; in Mr Mammadov’s case, this ban applies until August 2026. Furthermore, Intigam Aliyev is unable to resume his professional activities because of the seizure of documents and equipment and the sequestration and freezing orders made on his NGO’s office and bank account during the criminal proceedings.

The authorities should be requested to provide information on the current situation of all the applicants in this group and the measures which could be taken to erase, as far as possible, the consequences of the impugned criminal proceedings.

General measures

Given the increasing number of judgments against Azerbaijan in which the Court has found abuse of power and misuse of criminal law to punish and silence critics of the government, and the failure of the domestic courts to protect against this, as highlighted  by the Court’s findings under Article 46 in the Aliyev judgment, it is essential that the authorities adopt effective and comprehensive measures to ensure the protection of critics of the government, civil society activists and human-rights defenders from retaliatory prosecutions, arbitrary arrest and detention and misuse of criminal law against such persons, including by reinforcing the effectiveness of judicial protection against such practices.

In this context, the Executive Order of February 2017 should be recalled (see DH-DD(2017)172), which included stricter measures to fight abuse of power and a recommendation to the courts that they examine the existence of reasonable suspicion that the accused committed an offence when deciding on measures of restraint. More recently, on 3 April 2019, the President issued a Decree on the deepening of reforms in the judicial-legal system which also touches upon judicial independence and development of unified judicial practice.^[4] The authorities could be invited to provide further details of the measures they have put in place, or plan, to combat the practices identified by the Court in this group of cases.

It is proposed that the Committee supervise the general measures required in relation to the violation of Article 3 in the Aliyev case under the Insanov group, which deals with conditions of detention, while general measures relating to pre-trial detention are being examined in the Farhad Aliyev group and general measures relevant to the violation of the right to the presumption of innocence in the Ilgar Mammadov case are being supervised in the context of the Fatullayev case, which is in the Mahmudov and Agazade group of cases.

Finally, it is to be recalled that the problem of the arbitrary application of criminal law to limit freedom of expression is also being dealt with in the Mahmudov and Agazade group.

Financing assured: YES