MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-4

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-4 Mammadli group v. Azerbaijan (Application No. 47145/14) Supervision of the execution of the European Court’s judgments Reference document DH-DD(2021)1169, DH-DD(2020)970, H/Exec(2021)7, CM/ResDH(2020)47, CM/ResDH(2021)41, CM/Del/Dec(2021)1411/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
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 thirteen 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, Rashad Hasanov and Others, 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, Rashad Hasanov and Others, 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 respect of them 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.

In September 2019 the first three judgments in the group (Mammadli, Rashad Hasanov and Others and Aliyev), involving six applicants, were transmitted by the Government Agent to the Supreme Court for reconsideration in line with the procedure envisaged in the Code of Criminal Procedure. On 2 November 2020^[2] the authorities informed the Committee that these judgments were under review by the Plenum of the Supreme Court, but that its work was hampered by the ongoing health crisis and the armed conflict involving the country. The authorities also indicated that the two other judgments (Ibrahimov and Mammadov and Khadija Ismayilova (No. 2)) involving three other applicants had been translated and transmitted to the relevant state bodies to identify the scope of individual measures required and to take these measures.

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.

According to the last information submitted by the authorities on 25 May 2021, the Court’s judgments in the cases of Mammadli, Rashad Hasanov and Others, Aliyev, Ibrahimov and Mammadov, Khadija Ismayilova (No.2) and Yunusova and Yunusov were still under the review of the Supreme Court and the Committee would be duly informed about the scheduled dates and the outcomes of the hearings before the Plenum of the Supreme Court.

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.^[3]

At its 1411^th meeting, the Committee expressed its gravest concern regarding the continuing failure to implement the individual measures required in this group of cases in the light of the unequivocal findings of the Court in its judgment in the infringement proceedings in the Ilgar Mammadov case. It invited the authorities to cooperate closely and as a matter of urgency with the Secretariat with a view to identifying and taking without further delay the concrete steps needed to eliminate the negative consequences of the abusive criminal charges against all the remaining applicants, including by ensuring their prompt examination by the Supreme Court.

On 22 November 2021 the authorities informed the Committee that on 19 November 2021 the Plenum of the Supreme Court had examined the cases of Rashad Hasanov, Zaur Gurbanli, Uzeyir Mammadli and Rashadat Akhundov and, having regard to the European Court’s judgment delivered in their case (Rashad Hasanov and Others, application No. 48653/13) and its conclusions, had held that the criminal proceedings against the applicants should be discontinued on the ground of failure to prove their guilt in accordance with Article 39.2 of the Code of Criminal Procedure (“Circumstances precluding criminal prosecution”). The Plenum had quashed the applicants’ convictions and had awarded them compensation for non-pecuniary damage sustained as a result of unlawful arrest and imprisonment.

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”,^[4] as well as about the steps taken for strengthening the uniformity of judicial practice and legal certainty.^[5] 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 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.

In their Rule 9 communications,^[6] civil society organisations underlined that the systemic misuse of the criminal justice system persists in Azerbaijan. They suggested that the authorities should be called upon to take effective measures to fully eradicate such misuse and end the politically motivated prosecution against civil society and human rights activists, in particular by carrying out reforms to ensure the independence of the judiciary and prosecution authorities.

At its 1411^th meeting the Committee emphasised once again the urgent need for the Supreme Court to build on the precedents set in the Ilgar Mammadov and Rasul Jafarov cases by rapidly examining and quashing the convictions of the remaining applicants and annulling any negative consequences of these, as part of the process of firmly establishing the Supreme Court’s case-law which ensures that no further similar abuses of the criminal justice system can take place. It further reiterated its call on the authorities to implement the recommendations of the Group of States against Corruption (GRECO) and other relevant recommendations of Council of Europe bodies in order to fully respond to the concerns raised by the European Court in the present cases, rapidly addressing the root causes of the violations established, in particular by strengthening guarantees of independence and impartiality of judges and prosecutors, notably in relation to the composition of the Judicial Legal Council and its role in safeguarding and strengthening judicial independence.

The Committee instructed the Secretariat to prepare a draft interim resolution to be adopted at the December (DH) meeting, if no tangible progress is achieved in the individual and general measures required in the present cases by 1 November 2021.

On 5 November 2021 the authorities submitted a communication on the general measures.

Analysis by the Secretariat

It is noted that in response to the Committee’s last decision, the Azerbaijani authorities engaged in high level consultations with Secretariat, which, at the time of the preparation of the present Notes, were under way. Consultations took place in Baku between 27-28 October 2021, and subsequently the authorities sent written information, which came too late for an analysis to be made in the Notes. Therefore, it is proposed to prepare draft decisions in the light of this information and the debate.

These consultations are held with the relevant Azerbaijani authorities and concern, among other items, the individual measures needed to eliminate the negative consequences of the abusive criminal charges against all the remaining applicants, including by ensuring their prompt examination by the Supreme Court as well as the general measures required to build firm domestic case-law to prevent similar violations and to address the root causes of the violations, in particular, by strengthening guarantees of independence and impartiality of judges and prosecutors. The Secretariat will inform the Committee of the outcome of these consultations at its present examination of these cases.

Following these consultations, the Azerbaijani authorities provided information on both individual and general measures.

As regards individual measures, the quashing, by the Plenum of the Supreme Court of Azerbaijan, of the convictions of the applicants in the case of Rashad Hasanov and Others should be noted with satisfaction and allows for this case to be closed. A draft final resolution is attached.

The Committee could also call on the authorities to take all steps within their powers to ensure that the convictions of the remaining applicants in this group of cases are quashed without further delay. In this connection, it is recalled that at its 1390^th meeting (December 2020) (DH), the Committee decided to continue examining this group of cases at each of its human rights meetings until all the applicants’ convictions are quashed.

As regards general measures, on 5 November 2021 the authorities provided an action report regarding the general measures for this group of cases. It can be noted with interest that, among other measures, a draft bill has been prepared to provide greater protection to judicial independence, including toughening penalties for obstructing the administration of justice, for exerting any unlawful external pressure on the court's functioning and for contempt of court. In addition, greater powers have been given to the Judicial-Legal Council.

In previous decisions the Committee has called on the authorities to implement the remaining recommendations of the Group of States against Corruption (GRECO) and other relevant recommendations of Council of Europe bodies in order to fully respond to the concerns raised by the European Court in the present cases, rapidly addressing the root causes of the violations established, in particular by strengthening guarantees of independence and impartiality of judges and prosecutors, notably in relation to the composition of the Judicial Legal Council and its role in safeguarding and strengthening judicial independence.

For the Committee’s next examination, the authorities could be requested to provide further information as regards the implementation of the remaining GRECO recommendations which have not yet been implemented, in good time before the meeting, to allow the Secretariat to provide for the Committee a full analysis of the general measures taken so far and foreseen.

In the decision adopted at the September DH meeting, the Committee instructed the Secretariat to prepare a draft interim resolution to be adopted at the present meeting, if no tangible progress had been achieved in the individual and general measures required in the present cases by 1 November 2021. In the light of the high-level consultations, the information on general measures and, in particular, the decision of the Plenum of the Supreme Court, it can be said that tangible progress has been achieved. The Secretariat therefore proposes to the Committee to adopt the draft decision below, and has not prepared a draft interim resolution.

Financing assured: YES