MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1390/H46-2

3 December 2020

1390th meeting, 1-3 December 2020 (DH) Human rights   H46-2 Mammadli group v. Azerbaijan (Application No. 47145/14) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2020)970, CM/Del/Dec(2020)1377bis/H46-3

 

Application	Case	Judgment of	Final on	Indicator for the classification
47145/14	MAMMADLI	19/04/2018	19/07/2018	Complex problem and urgent individual measures
48653/13+	RASHAD HASANOV AND OTHERS	07/06/2018	07/09/2018
68762/14+	ALIYEV	20/09/2018	04/02/2019
64581/16	NATIG JAFAROV	07/11/2019	07/02/2020
63571/16	IBRAHIMOV AND MAMMADOV	13/02/2020	13/06/2020
30778/15	KHADIJA ISMAYILOVA (No. 2)	27/02/2020	27/06/2020

Case description

The ten applicants in this group (the former Ilgar Mammadov group)[1] are opposition politicians, human-rights defenders, civil society activists and a journalist. They were all the subject of arrests and detention in 2013-2016 which the European Court found to constitute a misuse of criminal law, intended to punish and silence them.

The European Court established that the arrest and detention of each applicant took place in the absence of any reasonable suspicion that he or she 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 Mammadli, Aliyev, Natig Jafarov, Ibrahimov and Mammadov and Khadija Ismayilova no.2). The Court concluded that the actual purpose of the criminal proceedings was to punish the applicants for their activities or prevent their further work and 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 Mammadli, Rashad Hasanov and Others, Natig Jafarov, Ibrahimov and Mammadov and Khadija Ismayilova No.2;violation of Article 18 taken in conjunction with Articles 5 and 8 in Aliyev).

Furthermore, in the Aliyev judgment the Court noted with concern that the events under examination in this series of cases in which it had found violations of Article 18 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 (§ 223).

More recently the Ibrahimov and Mammadov and Khadija Ismayilova (No. 2) cases were also found to constitute a part of this pattern.

Finally, in certain cases the Court found the following additional violations:[2] inhuman and degrading treatment by the police with a view to obtaining confessions and ineffective investigation in this respect (substantive and procedural limbs of Article 3 in Ibrahimov and Mammadov); degrading treatment on account of conditions of detention (Article 3 in Aliyev); degrading treatment on account of confinement in a metal cage during a court hearing (Article 3 in Natig Jafarov); a violation of the applicant’s presumption of innocence on account of the public statement of the Prosecutor General’s Office containing a declaration of her guilt (Article 6 § 2 in Khadija Ismayilova (No. 2)); interference with the right to respect for private life on account of search and seizure at the applicant’s home and office (Article 8 in Aliyev); and a violation of the applicants’ freedom of expression on account of their prosecution for drug-related crimes in retaliation for their political expression (Article 10 in Ibrahimov and Mammadov). 

Status of execution

Individual measures:

a) Last examination and new judgments:

At the 1377bis meeting in September 2020 (DH), the Committee closed the supervision of the execution of the judgments in respect of two applicants (Ilgar Mammadov and Rasul Jafarov) on the basis of the individual measures adopted, notably the quashing of their convictions and awarding of compensation by the Supreme Court of Azerbaijan. At the same time, the Committee expressed serious concern that that the convictions of the other six applicants remaining in the group at that time still stood and that they continued to face the negative consequences of the criminal charges. The authorities were therefore urged to urgently ensure a rapid restitutio in integrum for each of these applicants in line with the requirements underlined in previous decisions and already applied by the Supreme Court in respect of Mr Mammadov and Mr Jafarov.

At its 1383rd meeting in September 2020 (DH), the Committee classified the two new judgments Ibrahimov and Mammadov and Khadija Ismayilova (No. 2) as repetitive cases in this group. All three applicants are out of detention,[3] although their criminal convictions still stand.

            b) Most recent information from the authorities:

The authorities submitted the following information on 2 November 2020 (DH-DD(2020)970):

As regards the individual measures in respect of the three new applicants, the Court’s judgments were translated and transmitted to the relevant state bodies to enable them to identify the scope of individual measures required and to take these measures. The authorities will also keep the Committee informed about the status of the just satisfaction payments.  

As regards the individual measures in respect of the six other applicants in this group, the authorities recalled that the judgments are under the review of the Plenum of the Supreme Court, but expressed regret that its work is hampered by the ongoing health crisis and the current state of the conflict in the country. Notably, as a response to the COVID-19 pandemic, a strict confinement regime has been in force since March 2020, which entails closing courts and adjourning hearings. Since April 2020 the Plenum of the Supreme Court has held only two meetings to deal with urgent procedural matters. Furthermore, as a result of the martial law declared on 28 September 2020, various restrictions, including a curfew, have been introduced in the big cities. The authorities were not therefore in a position to provide concrete dates for the hearings of these cases by the Plenum of the Supreme Court at this stage. They reaffirmed however the commitment to the execution process and undertook to update the Committee about any progress achieved.

Finally, the authorities confirmed the information already provided orally to the Committee during its 1377bis meeting, that the criminal proceedings against one more applicant in this group (Natig Jafarov) were terminated and that, therefore, no negative consequences persist for him on account of the criminal charges brought in the framework of the proceedings examined by the Court.

            c) Most recent Rule 9 communications

On 1 July 2020, the applicant’s representative in the Khadija Ismayilova (No. 2) case submitted that Ms Ismayilova’s conviction, which still stands, hampers her ability to pursue her professional journalistic activities (see DH-DD(2020)939). Further, as a consequence of the criminal proceedings, she was subjected to a five-year travel ban and is unable to travel for work purposes or to seek medical treatment abroad. Her conviction also gave rise to lengthy civil enforcement proceedings resulting in a debt obligation and, as part of those proceedings, her bank accounts were frozen, preventing her from accessing her funds, including the compensation awarded by the Court in another judgment (Khadija Ismayilova v. Azerbaijan). Finally, the just satisfaction had not been paid.

On 13 July 2020, the applicants’ representatives in the Ibrahimov and Mammadov case complained about non-payment of the just satisfaction and requested the quashing of the applicants’ criminal conviction and an investigation into their ill-treatment (see DH-DD(2020)939).

General measures:

In their most recent communication of 2 November 2020 (DH-DD(2020)970), the authorities underlined that the general measures being taken in this group encompass comprehensive and continuous legislative and other measures. Detailed information about the recently launched judiciary reforms intended to remedy some of the shortcomings identified in these judgments was provided in the action plan of 20 September 2019 (DH-DD(2019)1033), and a number of additional measures have been  taken with a view to strengthening the uniformity of judicial practice and legal certainty.[4] The authorities further emphasised that, most recently, the National Action Plan 2020-2022 for Promotion of Open Government was adopted, which envisages measures aimed at expanding civil society activities and strengthening public control/public participation through increasing support for NGO projects and initiatives, preparation and adoption of proposals on simplification of their state registration, improvement of grant agreement registration procedures. The communication underlines that the Committee will be kept informed about the ongoing reforms and their impact relevant to the execution of these judgments. 

In their Rule 9.2 communication of 22 October 2020 (DH-DD(2020)971), nine NGOs[5] underlined that the systemic problem of reprisals and political persecution persists in Azerbaijan and that this issue is closely connected to the problem of the restrictive NGO framework. They called upon the Committee to express serious concern over Azerbaijan’s failure to pursue the measures required to address the systemic causes leading to multiple Court judgments on politically motivated prosecutions and imprisonment of government critics and human rights defenders and to maintain the Mammadli group on the agenda of every DH meeting, as a follow-up to the infringement procedure in the Ilgar Mammadov (Article 46 § 4) case. They further requested that the authorities are called upon to effectively address the lack of independence in the judiciary; to end the politically motivated prosecution of civil society members and all arbitrary restrictions on their work; and to stop reprisals for legitimate human rights work. Finally, the Committee is requested to address the issue of restrictive NGO and grants legislation in its next decision and to instruct the Secretariat to prepare an interim resolution for adoption at its March 2021 DH meeting unless the criminal convictions of all applicants in this group are overturned by that time.

In their comments on this Rule 9 communication (DH-DD(2020)971), the authorities noted that the issues raised are not relevant in the light of the violations found by the Court in this group. In particular, these violations mainly relate to the misuse of criminal law and deprivation of liberty without reasonable suspicion and do not specifically concern the violation of the right to freedom of association, the Court’s judgments containing neither in-depth legal analysis of the NGO legislation, nor an assessment of its compliance with the Convention standards.

he authorities also underlined that the latter issues are examined in the context of other judgments concerning violations of freedom of association (Ramazanova and Others group). As regards the reference made to the infringement proceedings, the authorities underlined that the Ilgar Mammadov case examined under the infringement procedure was closed by the Committee in September 2020 and that this judgment concerned one particular case and is not open for broader interpretation.

Analysis by the Secretariat

Individual measures:

Although the authorities indicated that the Court’s judgments in Ibrahimov and Mammadov and Khadija Ismayilova (No. 2) were translated and transmitted to the relevant state bodies, it is unclear whether this includes transmitting the judgments to the Supreme Court for reconsideration under Articles 455 and 456 of the Code of Criminal Procedure. The authorities should thus urgently clarify this, as well as ensure that these two new judgments are transmitted without delay if not yet done.”.

It is recalled in this respect that domestic law sets a deadline of three months for the Supreme Court to consider a judgment transmitted in this way by the Government Agent, and that this deadline expired in December 2019 in respect of the other six applicants in this group.

As already noted by the Committee, the findings of the Court in the Ilgar Mammadov (Article 46, § 4) judgment, delivered in the framework of the infringement proceedings on 29 May 2019, leave no question concerning the scope of the individual measures required for the execution of each judgment in this group, where like the applicant in that case, the applicants were convicted of the abusive charges brought against them. Thus, restitutio in integrum in each case can only be achieved through quashing of all applicants’ convictions, their erasure from their criminal records and the elimination of all other consequences of the criminal charges brought against them, including by fully restoring their civil and political rights. This remains an urgent necessity regardless of the fact that the Committee has closed its supervision of the infringement judgment concerning Ilgar Mammadov following the quashing of his own conviction by the Supreme Court.

The authorities’ explanations as regards the obstacles faced by the Supreme Court stemming from the measures taken in the light of the COVID-19 pandemic and imposition of martial law are noted. However, it remains a matter of deep concern that the applicants in the remaining cases continue to suffer the negative consequences of their criminal convictions, which still stand, including the inability to fully resume their professional and political activities. It is thus of the utmost importance that no efforts are spared to ensure their full redress without any further delay. This could be achieved by using modern technology solutions if impediments to holding physical meetings of the Plenum persist.  

The just satisfaction awarded in Ibrahimov and Mamamdov and Khadija Ismayilova (No. 2), including accrued default interest, should be paid without further delay. Since restitutio in integrum entails elimination of all negative consequences of the abusive criminal proceedings, including the freezing of their bank accounts and travel bans, clarifications should be provided on the current status of Ms Ismayilova’s bank accounts and the possibility for her to access the just satisfaction amounts awarded by the Court, together with the lifting of the travel ban imposed on her.

As regards the violation of Article 3 in Ibrahimov and Mammadov, information is awaited on the measures taken in respectof the investigation into the applicants’ allegations of ill-treatment.

Finally, it follows from the information provided in the Natig Jafarov case that the individual measures have been resolved for this applicant. This issue could consequently be closed.

  

General measures:

The new information provided by the authorities concerning notably the adoption of the National Action Plan for 2020-2022 for Promotion of Open Government, which is reported to envisage a range of measures aimed at facilitating the work of civil society appears interesting. The authorities could be requested to provide the Committee with full details. It is recalled in this respect that issues relating to the right of freedom of association are being examined by the Committee in the context of the Ramazanova and Others group, and the information to be submitted will be examined in that group.

As regards general measures currently being taken and required to prevent similar violations to those found by the Court in this group, a detailed analysis can be found in the notes for the Committee’s 1362^nd meeting (December 2019) (DH) and 1377bis meeting.

In the light of this analysis, the authorities should provide, without further delay, more specific information on the measures taken in response to the specific recommendations[6] aimed at strengthening the independence of the judiciary and the prosecution service and ensuring stronger compliance with the Council of Europe’s standards and the Court’s case law (including changes to the composition and functions of the Judicial Legal Council, legislation on the objective and transparent criteria for the permanent appointment of judges and measures aimed at ensuring stronger independence of the Prosecutor’s Office from the executive).

Finally, as noted by the Committee in its last decision, in April 2020 the Supreme Court set an important precedent in the domestic jurisprudence for the application of criminal legislation in line with Convention standards and the European Court’s findings. Moreover, it appears that the measures aimed at ensuring the uniformity of the domestic jurisprudence are among the key priorities for the on-going judicial reform. It is consequently important to receive information on how the above precedent of the Supreme Court is built on and followed in the domestic case law, including by the lower courts, with a view to preventing arbitrary arrests and detention or other misuse of criminal law.

In the light of the Court’s findings in Natig Jafarov, the authorities are also expected to provide information on the measures taken to abandon the practice of placing defendants in metal cages during court hearings, which is the only issue in that case which remains outstanding.

Financing assured: YES