MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1428/H46-4

9 March 2022

1428th meeting, 8-9 March 2022 (DH) Human rights   H46-4 Mammadli group v. Azerbaijan (Application No. 47145/14) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)1293, DH-DD(2021)1169, H/Exec(2021)7, CM/ResDH(2021)41, CM/Del/Dec(2021)1419/H46-4

 

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
68762/14+	ALIYEV	20/09/2018	04/02/2019
63571/16	IBRAHIMOV AND MAMMADOV	13/02/2020	13/06/2020
30778/15	KHADIJA ISMAYILOVA (No. 2)	27/02/2020	27/06/2020
68817/14	YUNUSOVA AND YUNUSOV (No. 2)	16/07/2020	16/10/2020
65583/13+	AZIZOV AND NOVRUZLU	18/02/2021	18/05/2021

Case description

The nine remaining applicants in this group (the former Ilgar Mammadov group)^[1] are 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 applicants’ arrest and detention took place in the absence of any reasonable suspicion that he or she had committed an offence (violations of Article 5 § 1(c) inMammadli, Ibrahimov and Mammadov, Khadija Ismayilova (No. 2) and Yunusova and Yunusov (No. 2). 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, Ibrahimov and Mammadov, Khadija Ismayilova (No. 2) and Yunusova and Yunusov (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, Ibrahimov and Mammadov,Khadija Ismayilova (No. 2) and Yunusova and Yunusov (No. 2); violation of Article 18 taken in conjunction with Articles 5 and 8 in Aliyev).

In Azizov and Novruzlu the Court found that the authorities failed to give relevant and sufficient reasons to justify the need for the extension of the applicants’ pre-trial detention and the ulterior purpose of the restriction of the applicants’ liberty resulting in their continued pre-trial detention constituted the predominant purpose, which was to punish and silence them for their activities (violations of Article 5 § 3 and of Article 18 taken in conjunction with Article 5 § 3).

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. The cases reflected a troubling pattern of arbitrary arrests and detentions 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, Khadija Ismayilova (No. 2) and Yunusova and Yunusov (No. 2) cases were also found to constitute a part of this pattern.

Finally, in certain cases the Court found the following additional violations:

• 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);
• degrading treatment on account of conditions of detention (Article 3);
• degrading treatment on account of confinement in a metal cage during a court hearing (Article 3);
• a violation of presumption of innocence (Article 6 § 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);
• 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);
• unlawful freezing of bank accounts (Article 1 of Protocol No. 1); lack of effective remedies (Article 13); and breach to the right of individual petition (Article 34).

Status of execution

Individual measures:

In its decisions adopted following the Ilgar Mammadov (Article 46 § 4) judgment of May 2019, delivered by the Court following the infringement proceedings launched by the Committee of Ministers, the Committee has repeatedly underlined that restitutio in integrum in each case in this group can only be achieved through the quashing of all the 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. 

At its 1369^th meeting (March 2020) (DH), the Committee adopted an interim resolution, urging the authorities to ensure that all the necessary individual measures are taken in respect of each of the applicants without any further delay. Following this, the required individual measures were taken in respect of two applicants (Ilgar Mammadov and Rasul Jafarov), as a result of judgments of the Supreme Court of Azerbaijan in April 2020, quashing their convictions and ordering the payment to them of compensation. This permitted the Committee to close the supervision of the execution of the judgments in their respect at the 1377bis meeting (September 2020) (DH).

As regards the remaining applicants, the Committee decided to examine this group of cases at each of its human rights (DH) meetings until all the applicants’ convictions are quashed.

Subsequently, at its 1411^th meeting (September 2021) (DH), the Committee closed the supervision of the execution of the Natig Jafarov case in view of the fact that the criminal proceedings against the applicant had been terminated and no negative consequences persisted on account of the abusive criminal charges brought against him in the framework of the proceedings examined by the Court.

More recently, at its 1419^th meeting (30 November – 2 December 2021) (DH), the Committee closed the supervision of the execution of the judgment of Rashad Hasanov and Others having noted with satisfaction the decision of the Plenum of the Supreme Court of 19 November 2021 which quashed the criminal convictions of the four applicants in that case, discontinued the criminal charges against them and awarded them compensation for unlawful arrest and imprisonment.

In the Rule 9 submissions provided to the Committee, the applicants and their representatives have complained that their criminal convictions still stand and that they continue to suffer serious consequences of the abusive criminal proceedings. In particular, they are still unable to stand for elections and are impeded in carrying out their professional activities.^[2]

As regards just satisfaction, the authorities indicated that the amounts were paid in full to the two applicants in the case of Azizov and Novruzlu. Information is awaited about the payment of the outstanding amounts in respect of two of the applicants, namely Ms Ismayilova (application No. 30778/15) and Mr Ibrahimov (application No. 63571/16).

At the time of the preparation of the present Notes, no information has been provided by the authorities as regards the quashing of the criminal convictions of the remaining applicants in the present group.

General measures:

In their previous submissions, the authorities informed the Committee about a set of measures initiated, mostly as a follow up to the Presidential Decree of April 2019 “On deepening of reforms in the judicial legal system”,^[3] as well as about the steps taken to improve the uniformity of judicial practice and legal certainty.^[4] They indicated that the ongoing reform covers issues related to strengthening the independence of the judiciary, ensuring its transparency, increasing the efficiency of the judicial process, reduction of judicial caseload and combatting corruption and other offences in the judiciary. They also informed the Committee about the implementation of the relevant recommendations of the Group of States against Corruption (GRECO) to strengthen the independence of the judiciary and the prosecutor’s office. The authorities also provided information concerning the ongoing removal of metal cages in the remaining court buildings.

On 5 November 2021 the authorities submitted additional information on the general measures taken. In particular, they indicated that a draft bill has been prepared to provide greater protection for judicial independence, including toughening penalties for obstructing the administration of justice, exerting any unlawful external pressure on the court's functioning and contempt of court. Furthermore, in order to prevent external pressure on judges, a new mechanism has been put in place allowing judges to inform directly the Judicial-Legal Council about instances of undue interference. In addition, the authorities submitted information about the recent changes to the Code of Civil Procedure concerning various aspects of the conduct of the civil proceedings and the use of e-court system.

At its 1419^th meeting the Committee noted with satisfaction that the Azerbaijani authorities had engaged in high-level dialogue with the Secretariat with a view to achieving tangible progress in the present cases. It further underlined that the decision of the Plenum of the Supreme Court dated 19 November 2021 is an important step forward in building firm domestic judicial practice as a follow-up to the precedents set in the Ilgar Mammadov and Rasul Jafarov cases, and a key general measure to prevent similar abuses of criminal justice in future. It further recalled its previous decisions in which it called on the authorities to implement the remaining GRECO recommendations, notably in relation to the composition of the Judicial Legal Council and its role in safeguarding and strengthening judicial independence.

On 3 February 2022 the authorities submitted a communication on the general measures taken, which may be summarised as follows.

Selection of judges and evaluation of their work. The current selection process is based on a transparent procedure with the aim of filling vacant positions with young lawyers with the best knowledge and high moral qualities. The Judicial Legal Council also adopted new Rules for evaluation of the performance of judges on the basis of comprehensive and transparent criteria.

Reorganisation of the Registry of the Supreme Court which was performed with a view to ensuring the effective and efficient work of the Supreme Court and establishment of new departments in Registry, including a newly restructured “Department of Analysis of Judicial Practice”, to facilitate the judicial work and to ensure uniformity of its case law. The “E-Court” information system has been also put in to make justice more accessible.

Judicial-Legal Council has been provided with additional powers in recent years such as making proposals on the appointment of court presidents and all other judges. It also provides legal opinion on the allocation of the budget to the courts of first instance and the courts of appeal and it monitors and prevents external interference with the work of judges.

Analysis by the Secretariat

As regards individual measures

·         Quashing of criminal convictions. At the time of the preparation of the present Notes, no information has been provided by the authorities as regards the quashing of the criminal convictions of the remaining nine applicants in the present group. It is of outmost importance that their convictions are quashed without delay and in line with the most recent decision of the Plenum of the Supreme Court in the case of Rashad Hasanov and Others.

As regards general measures

1)     Strengthening guarantees of independence and impartiality of judges and prosecutors 

·         Obstruction of administration of justice. More detailed information appears necessary with regard to the draft bill toughening penalties for obstructing the administration of justice and exerting any unlawful external pressure on the court's functioning and contempt of court. In particular, clarification would be welcome on the operation of this procedure in the context of any attempts by the executive to exercise political pressure on the judiciary.

·         Possibility for judges to alert the Judicial-Legal Council (JLC) in the event of any external pressure: this is to be welcomed. More detailed information is needed as regards the further steps to be taken by the JLC to investigate allegations of external influence on judges and decisions which can be taken by the Council in this context.

·         GRECO recommendations and COE standards regarding the independence of the judiciary and the prosecution: Information is still awaited from the authorities as regards the implementation of the remaining GRECO recommendations, in particular in relation to the composition of the Judicial Legal Council and its role in safeguarding and strengthening judicial independence (for details see the Notes for 1406^th meeting (June 2021) (DH)[5].

2)     Judicial protection against arbitrary detention and prosecution

It is recalled that in its Aliyev judgment, the Court “stress[ed], 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 in the cases which resulted in the judgments adopted by the Court, limiting their role to one of mere automatic endorsement of the prosecution’s applications to detain the applicants without any genuine judicial oversight”.

It is against this background that the Committee at its 1419^th meeting noted with satisfaction the latest decision of the Plenum and underlined that this decision is an important step forward in building firm domestic judicial practice to prevent similar abuses of criminal justice in future. While the decisions of the Plenum of the Supreme Court are mandatory for lower courts, it is important that that the authorities take targeted awareness raising measures to ensure that the decisions of the Plenum in Rashad Hasanov and Others, Ilgar Mammadov and Rasul Jafarov cases are duly taken into consideration by first-instance and appellate courts.

3)     Prevention of retaliatory and punitive detention and prosecution

In the light of the Court’s recent findings in Azizov and Novruzlu, it is necessary that the authorities take measures aimed at improving the practice of the prosecution authorities in order to ensure that their detention orders and decisions to prosecute meet the standard of reasonable suspicion and be free of bad faith and ulterior motives.

Financing assured: YES