MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-7

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-7 Mammadli group v. Azerbaijan (Application No. 47145/14) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)385, DH-DD(2022)1167, DH-DD(2022)548, H/Exec(2021)7, CM/ResDH(2021)41, CM/ResDH(2022)251, CM/Del/Dec(2024)1507/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

·  Co-operation Project: Support for the improvement of the execution of the European Court judgments by Azerbaijan

Case description

The seven remaining applicants in this group (the former Ilgar Mammadov group) are human-rights defenders, civil society activists and a journalist. They were all the subject of arrests and detentions in
2013-2016, which the European Court found to constitute a misuse of criminal law, intended to punish and silence them. All applicants were released before the European Court delivered its respective judgments.

The European Court established that the applicants’ arrests and detentions took place in the absence of any reasonable suspicion that they had committed an offence (violations of Article 5 § 1 (c) in Mammadli, 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).

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 the actions of the State gave rise to a risk of further repetitive applications (§ 223).

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.

In Aliyev, Yunusova and Yunusov (No.2)[1] and Ibrahimov and Mammadov^[2], the Court found additional violations, the general measures in respect of which are examined under other groups of cases.

Status of execution

Individual measures:

Following the failure of Azerbaijan to implement the required individual measures in the first case in this group (Ilgar Mammadov), the Committee initiated, for the first time, proceedings under Article 46 § 4 of the Convention. The Court issued its Ilgar Mammadov (Article 46 § 4) judgment in May 2019.^[3] In its decisions adopted subsequently, drawing on its own established practice and the Court’s reasoning in the Ilgar Mammadov (Article 46 § 4) judgment, the Committee has repeatedly underlined the requirement for restitutio in integrum in each case in this group. It stated that this could 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. 

Between 2020 and 2022 and following the adoption of decisions and interim resolutions by the Committee of Ministers, the Supreme Court reopened some of the cases in this group and quashed the convictions of the applicants Ilgar Mammadov, Rasul Jafarov, Natig Jafarov, and the applicants in the cases of Rashad Hasanov and Others and Azizov and Novruzlu. The Committee therefore closed its supervision of these cases, as the negative consequences of the violations found had been eliminated. However, the same steps were not taken by the Supreme Court in the remaining cases[4] in which the Committee maintained its calls to the authorities to achieve implementation of the judgments.

In September 2023, the Committee strongly called on the authorities to deploy all efforts to ensure that the Plenum of the Supreme Court reaffirms its previous case law and examines the remaining cases without any further delay. Considering that the suspension of the criminal proceedings against the applicants in the case of Yunusova and Yunusov (No. 2) does not remedy the negative consequences suffered by the applicants, the Committee also invited the authorities to consider further measures to terminate those proceedings in compliance with the European Court’s judgment.

Due to the absence of any tangible progress in relation to individual measures and upon the invitation of the Committee, on 26 March 2024 the Chair of the Committee of Ministers sent a letter to Minister of Foreign Affairs of Azerbaijan, urging the authorities to find swift solutions to abide fully and effectively by their obligations deriving from the Court’s judgments in these cases (see DH-DD(2024)636). By a letter dated 3 June 2024, the Minister for Foreign Affairs of Azerbaijan replied, noting that Azerbaijan is fully committed to the Convention system, including the execution of the judgments of the European Court of Human Rights. He assured the Chair of the Committee of Ministers that the Committee will be kept up to date regarding any progress achieved in the execution of the present group.

At its last examination of the group at its 1507^th meeting (September 2024) (DH), the Committee deeply deplored that the applicants’ convictions still stand, and called on the authorities to urgently intensify their efforts to ensure the prompt quashing of the remaining seven applicants’ convictions, their erasure from their criminal records and the elimination of all other negative consequences of the criminal charges brought against them, ensuring full restoration of their civil and political rights.

The Committee also noted the call by the Heads of State and Government in the Reykjavík Declaration for a “co‑operative and inclusive approach, based on dialogue, in the supervision process to assist States in the execution of the Court’s judgments”, and encouraged the authorities to renew such dialogue at a high level with the Secretariat in order to achieve the completion of the last remaining individual measures required for the execution of this group of cases.

In previous Rule 9.1 submissions,^[5] 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 election and are impeded in carrying out their professional activities. In a Rule 9.1 submission (DH-DD(2024)649) from 5 June 2024, the applicant in the Mammadli case stated that despite the several unequivocal calls of the Committee, the authorities have failed to ensure the quashing of his previous conviction by the Supreme Court. He requested the Committee to use all available tools at its disposal to have his conviction in the proceedings covered by the present group quashed by the Supreme Court.

At the time of the preparation of the present Notes, no new information has been provided by the authorities.

General measures:

The Committee has repeatedly stressed that the urgent need to quash the convictions of the remaining applicants in the present group remains the key outstanding general measure. In its previous decisions, bearing in mind the excessive and unexplained delay of the Supreme Court in examining the cases that are transferred to it with a re-opening request following a judgment by the European Court, the Committee invited the authorities to consider what steps they could envisage to bring the domestic practice on re-opening of the proceedings in line with the requirements of the Convention system.

In September 2023, the Committee welcomed the recent amendments to the Law on the Judicial-Legal Council (JLC), which appear to respond to the calls of the Committee of Ministers in this group and the Group of States against Corruption (GRECO) recommendations regarding the composition of the JLC, in particular by providing that no less than half of its members shall be judges who are directly elected or appointed by their peers; it will no longer include a representative appointed by the President of Azerbaijan; the Minister of Justice is no longer an ex officio member, and that the chairman of the JLC can now only be elected from amongst its judicial members. 

In their communication (DH-DD(2024)385), the authorities noted that a draft law was introduced to the Parliament to amend certain provisions of the Law on Courts and Judges, aiming to curtail any potential influence on the judiciary by the executive branch. These amendments are proposed to further strengthen the powers of the JLC, in addition to the previous amendments changing its composition.

Rule 9.2 submissions

A joint Rule 9.2 submission of four NGOs (DH-DD(2024)941) provided an update on both individual and general measures. As regards individual measures, they stressed that the possible sentence faced by Mr Mammadli following his detention in April 2024 was negatively affected by the delay of the Supreme Court’s in quashing his previous conviction, which is under examination in this group. They explained that the prosecution authorities treated Mr Mammadli as a person with a previous conviction and asked for an aggravated sentence. The NGOs therefore stressed the urgent need for the Supreme Court to quash all convictions for the remaining seven applicants in this group. As to general measures, they argued that there was a wave of retaliatory prosecutions since November 2023 and maintained that arbitrary arrest and detention as tools of retaliation through misuse of criminal law against critical media members, human rights defenders and opposition activists, continued. In this connection, they referred to the report of the Election Monitoring and Democracy Studies Centre, according to which in 2023, 85 activists, politicians, journalists and religious activists faced politically motivated criminal charges leading to their arrests. Additionally, 39 individuals were subject to administrative arrests on political grounds that same year. The most recent “list of political prisoners” updated in June 2024 by the Union for the Freedom of Political Prisoners in Azerbaijan also included 303 cases, highlighted the ongoing issues of politically motivated detentions. As to reforms concerning judicial independence, while welcoming the legislative amendments to increase the powers of the Judicial-Legal Council, they noted that the real positive impact of any such reforms towards enhancing independence of the Council and the judiciary shall be demonstrated through practice.

Analysis of the Secretariat

As regards individual measures

In view of the urgently required individual measures, since December 2020, the Committee has been examining this group of cases at each of its human rights (DH) meetings; and it decided to do so until all the applicants’ convictions have been quashed.

Having regard to the violations of Article 18, the best possible way to ensure restitutio in integrum is to fully eliminate all the negative consequences of the wrongful and abusive criminal proceedings instituted against the applicants, which are a priori devoid of any substance. Under the present circumstances, the applicants' convictions resulting from the verdicts of guilt in their cases remain valid, even if expunged due to the passage of time. The remaining negative consequences of the criminal proceedings brought against the applicants could therefore only be eliminated by quashing of their convictions by the Supreme Court. This is why, in accordance with its previous decisions, in September 2024 the Committee called on the authorities to urgently intensify their efforts to ensure the prompt quashing of the remaining seven applicants’ convictions, their erasure from their criminal records and the elimination of all other negative consequences of the criminal charges brought against them, ensuring full restoration of their civil and political rights.

In their previous submissions, the authorities, referring to the meeting of 27 January 2023 held between the President of the Supreme Court, the Director of Human Rights and the Secretariat of the Department for the Execution of Judgments of the European Court of Human Rights, noted that the President of the Supreme Court had reiterated support for the Convention system and stated that necessary efforts would be made to examine some of the remaining cases at the forthcoming Plenums.[6] Furthermore, in his letter of 3 June 2024, the Minister for Foreign Affairs of Azerbaijan stated that Azerbaijan is fully committed to the Convention system, including to the execution of the judgments of the European Court of Human Rights, and assured the Chair of the Committee of Ministers that the Committee will be kept up to date regarding any progress achieved in the execution of judgments in the present group of cases.

This being said, the last substantial information received in respect of individual measures dates back to June 2023^[7]. The absence of development, despite the assurances given, is deeply worrying. As long as the guilty verdicts of the applicants still stand, they are unable to stand for elections, hold public service or fully exercise their professional activities. The Committee might wish to reiterate its concern and its call for the required individual measures. It may also wish to recall that implementation of the Court’s judgments is a shared responsibility of all authorities, including the judiciary. Also, the impugned convictions should have no negative bearing on any new accusations or proceedings brought against the applicants, notably the applicant in the Mammadli case (see Rule 9 communication).

The applicants’ situation must be remedied as quickly as possible. To that effect, the Committee’s recent reference to the call in the Reykjavik Declaration, for a “cooperative and inclusive approach” to execution, and its encouragement to the authorities to renew such dialogue at a high level with the Secretariat to achieve the completion of the last remaining individual measures required in the execution of this group of cases, remain fully valid and could be reiterated.

As regards general measures

Quashing of the applicants’ convictions

The urgent need to quash the convictions of the remaining applicants in the present group remains the key general measure. This measure is also required to send a strong message from the senior judiciary to ensure that no further similar abuses of criminal justice system take place, and to establish a solid and consistent judicial practice against retaliatory and abusive detentions and prosecutions.

The need to ensure an effective re-examination of such cases is key to avoid similar breaches of the Convention. It is not disputed that provisions foreseeing the possibility of reopening following the finding of a violation by the European Court already exist in domestic law.[8]

Indeed, the domestic legal framework proved successful in the reopening of the cases of some of the applicants. However, the same practice does not appear to be functioning in an effective manner for the remaining applicants. In particular, it remains unclear what other remedies could be pursued if the Supreme Court fails to rule on the reopened case within the three-month deadline contained in the domestic legislation. This remains of concern, considering the Court’s well-established case-law including in respect of Article 46, that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective[9].

The Committee may therefore wish to ask about measures taken by the competent authorities so as to bring the domestic practice on re-opening of the proceedings in line with the Convention requirements. In line with its previous decisions, it might wish to encourage the authorities to make full use of the technical support and expertise available through the Council of Europe and its co-operation activities, notably as regards the obligation of re-opening of the proceedings following the judgments of the European Court of Human Rights[10].

Measures relating to the independence of the judiciary

In this group of cases, the European Court found a violation of Article 18, taken in conjunction with Article 5 of the Convention, revealing 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. The root cause of the Article 18 violation, as identified by the European Court, is therefore the lack of independence of the prosecuting authorities and the judiciary. Where the violation reveals a misuse of the criminal justice system, reforms to reinforce the independence of the judiciary and to shield the judiciary as well as the prosecuting authorities from political influence, in particular from the executive, are necessary. Consequently, the identified general measures in this group aim to reinforce the capacity of the judiciary to withstand external pressures and to operate independently and within the law.

In previous decisions, the Committee positively noted comprehensive domestic structural changes that were made to reinforce the role of the judiciary within the Judicial Legal Council (JLC). The Committee also took note of the draft law which was sent to the Parliament to amend certain provisions of the Law on Courts and Judges, aiming to curtail any potential influence on the judiciary by the executive branch. Information is still awaited on the outcome of this draft law which will be a further positive step to further strengthen the powers of the JLC.

Financing assured: YES