Harassment Of Human Rights Defenders: Criterion Democracy, Bad Organized Faith Together With Hidden Agendas - What Business Office For The European Courtroom Of Human Rights?

Dr Marco Antonio Simonelli, PhD, University of Siena, together with Alast Najafi, LLM candidate, University of Leiden

A. Introduction

In its recent judgment of Aliyev v. Azerbaijan, the European Court of Human Rights (hereafter the Court) activated anew the long dormant Article eighteen ECHR (which provides that States shall non abuse the possible limitations on human rights which the Convention allows)  to unanimously discover a violation thereof. The judgment is the tertiary representative this yr where the Court institute an Article eighteen violation inwards Azerbaijan, but nevertheless remains unprecedented, since it allowed the Court for the start fourth dimension to discover a violation of that provision inwards conjunction amongst Article 8 ECHR (the correct to private together with household unit of measurement life). The judgment also indicates the measures to live adopted yesteryear the Azeri Government to execute the judgement, patch drawing at the same fourth dimension a dramatic moving-picture demo of the political province of affairs inwards Azerbaijan.

The introduce slice briefly illustrates the facts of the case, to afterward consider the application of Article eighteen inwards the lite of the examine elaborated yesteryear the Grand Chamber inwards Merabishvili v. Georgia (1). It is claimed that whilst, on paper, the “predominant purpose” examine may live flawed, its application inwards Aliyev unveils Article 18’s promising potential inwards countering dominion of constabulary backsliding (2). In a tertiary step, the significance of the recommendations given yesteryear the Court nether Article 46 ECHR volition live examined, that testify themselves every bit existence a useful tool for enhancing the European supervision of “rebel” States, patch leaving the to a greater extent than political aspects of the Convention’s enforcement mechanisms to the Committee of Ministers (3). In the conclusions, it volition live sketched out which role Strasbourg could play inwards safeguarding commonwealth across Europe (4). 

1. The facts

Similar to the facts inwards Rasul Jafarov v. Azerbaijan, the representative concerned criminal proceedings brought against a civil-society activist, well-known human rights defender together with chairman of a non-governmental organisation. Charged for illegal entrepreneurship, large-scale taxation evasion together with aggravated abuse of power, the applicant was detained, together with several documents together with objects were seized during the search of his association’s role together with home. While nevertheless inwards detention, novel charges were brought against the applicant that atomic number 82 to a five-year suspended sentence together with his release inwards March 2016. The Court held that in that place had been, inter alia, a violation of Article eighteen taken inwards conjunction amongst Articles 5(1)(c) (concerning pre-trial detention) together with 8(2) ECHR, since both his detention together with the search of his role together with dwelling pursued the illegitimate aim to quiet together with punish the applicant for his activities inwards the champaign of human rights.

2. The considerations nether Article 18

Article eighteen ECHR states that restrictions on Convention rights shall non live applied for whatever run other than those for which they induce got been prescribed. For a long time, this Article has non been of whatever practical importance inwards the Court’s jurisprudence. Yet, a boring but steady ascent tin post away live observed since 2004, when the Court for the start fourth dimension institute a violation of that provision inwards Gusinskiy v. Russia, leading to 11 violations to the introduce day. This judicial chain culminated, at the halt of 2017, inwards the Grand Chamber ruling inwards Merabishvili, which laid out full general principles amongst regards to the interpretation together with application of Article 18. (See the Court’s guide to the application of Article 18).

Reiterating its findings inwards Merabishvili, the Court reaffirms the much criticized “predominant purpose” test. Indeed, this examine faced criticism since the real minute of its genesis: the 2 concurring opinions attached to the judgment inwards Merabishvili assail the examine for existence vaguely defined together with non providing objective criteria, together with also scholars considered the examine to live too narrowly constructed. Be that every bit it may, the examine prescribes that a restriction of 1 of the noun rights of the ECHR engages the responsibleness of a State nether Article eighteen when a run which is prescribed yesteryear the Convention alone serves to mask an illegitimate predominant together with ulterior purpose. Contrary to what the Government tried to argue, the Court also confirms the top dog novelty of the Merasbishvili judgment, namely that States no longer bask a full general presumption of expert faith.

Applying these principles to the introduce case, the Court points out that the “combination of the relevant case-specific facts inwards the applicant’s representative [were] similar to that of Rasul Jafarov (…) where proof of ulterior run derived from a juxtaposition of the lack of suspicion amongst contextual factors”. Unlike inwards Khodorkovskiy v. Russia, no “healthy core” was to live institute inwards the charges against the applicant. Therefore, the Court, after delivering a comprehensive together with alarming analysis of the political province of affairs inwards Republic of Azerbaijan - the Court points out restrictive legislation towards non-governmental organisations together with the fact that “[s]everal notable human-rights activists induce got been similarly arrested together with charged amongst serious criminal offences” (Aliyev, §208-214) - has no employment inwards finding a violation of Article eighteen inwards conjunction amongst Article 5 together with 8 ECHR.

The fashion inwards which the Court reached the decision that in that place has been a violation of Article eighteen sheds a novel lite on the relevance of the “predominant purpose” test. In Merabishvili, the Court considered every bit non-decisive the evidence submitted yesteryear the applicant inwards an crusade to demonstrate that his detention had been politically motivated. By contrast, inwards the introduce case, the political province of affairs appears to induce got played a decisive role inwards the Court’s assessment.

A paradigmatic representative is provided yesteryear the dissimilar weight attached to the statements from authorities officials. While considering inwards Merabishvili that “[s]uch statements tin post away alone live seen every bit proof of ulterior run (…) if in that place is evidence that the courts were non sufficiently independent” (§ 324); the Court’s finding inwards Aliyev that “the applicant’s arrest was accompanied yesteryear stigmatising statements made yesteryear world officials” (§ 210) amounts to an chemical constituent of proof to conclude that the proceedings brought against the applicant were politically motivated. This novel approach to the application of Article eighteen ECHR aligns amend amongst what Judges Yudkivska, Tsotsoria together with Vehabović had inwards heed when writing their split upward persuasion inwards Merabishvili: “when in that place is evident misuse of State mechanism for improper political ends, the Court should care for it yesteryear default every bit the predominant run together with hence discover a violation of Article 18” (Joint Concurring Opinion of Judges Yudkivska, Tsotsoria together with Vehabovic, § 38).

3. The “recommendations” nether Article 46: a novel musical instrument of European supervision?

After having decided the representative on the merits, the Court moves on to consider the application of Article 46 ECHR (§ 220-228), which concerns the legal strength of Court judgments. Considering its before case-law, where the Court had already institute Article eighteen violations inwards Azerbaijan, the Court finds that the events “cannot live considered every bit isolated events” but let on a “troubling pattern” of arbitrary arrest together with detention of authorities critics together with human rights activists together with a “misuse of criminal constabulary inwards defiance of the dominion of law” (Aliyev, §223). Furthermore, the Court notices that applications raising similar issues induce got been communicated to the Azeri Government or are pending before the Court.

It has to live underlined that the Court was non alone faced amongst a practise incompatible amongst the Convention but amongst a State which openly disregards the dominion of law, every bit the Court worryingly stressed itself. Indeed, the measures to live adopted when domestic courts boundary themselves to an “automatic endorsement of the prosecution’s application” (Aliyev, §223) tin post away hardly live identified.

Nonetheless, the Court decided to dot full general measures to live taken yesteryear Republic of Azerbaijan to comply amongst the judgment, i.e. the eradication of politically motivated prosecution against human rights activists. The practise to dot measures of full general application - without going the whole way of a pilot- judgment physical care for – is becoming e'er mutual inwards Strasbourg case-law (Sicilianos, 2017). However, notwithstanding their frequent utilization yesteryear the Court, the assessment of their legal value proves to live complex.

A prompt respond tin post away live given yesteryear restricting the analysis to the operative component of the judgment: if the Court’s indications are non echoed inwards the operative part, they tin post away live considered yesteryear the respondent State every bit no to a greater extent than than obiter dicta.

Such a decision proves unsatisfactory inwards the introduce case. On the 1 manus the judgment fails to address concrete measures towards Republic of Azerbaijan inwards its operative part. Yet, on the other hand, the formulations chosen yesteryear the Court – “the respondent State must focus on the protection of critics of the government”, “[t]he measures to live taken must ensure the eradication of retaliatory prosecutions”, “The private measures to live taken yesteryear the respondent State [..] must live determined inwards the lite of the price of the Court’s judgment” (Aliyev, §226-227) – are of a strong prescriptive nature together with cannot live classified every bit mere recommendations.

The almost satisfying answer, at to the lowest degree inwards the introduce case, is to catch these indications rather every bit a message directed at the Committee of Ministers (which has the chore of next upward the implementation of the Court’s judgments nether Article 46 ECHR) than at the Azeri Government; inwards fact, in that place are 2 expert reasons to holler back so.

First, according to Article 46(2) ECHR, the primary responsibleness for the supervision of the execution of judgments lies amongst the Committee of Ministers; hence these “recommendations” tin post away live considered every bit the backdrop against which the Committee of Ministers has to evaluate the implementation of the sentence yesteryear the Respondent State. (See Villiger, inwards Seibert together with Villiger, eds). Second, the precise nature of the indications may live interpreted every bit an crusade yesteryear the Court to foreclose an activity of the Committee of Ministers nether Article 46(4) ECHR, which allows the Committee of Ministers to refer to the Court the inquiry whether a respondent dry soil has faithfully executed a judgement. The physical care for has been harshly criticized yesteryear scholars every bit existence a game inwards which the Court has zip to win but much to lose, i.e. its legitimacy (see De Londras together with Dzethtsiarou, 2017).

The Committee of Ministers triggered Article 46(4) for the start fourth dimension inwards Dec 2017 to inquire whether Republic of Azerbaijan had properly executed the Court’s Judgment inwards Ilgar Mammadov. Since the execution of the judgment alone required the release of the applicant, who was nevertheless detained at the fourth dimension the Committee of Ministers launched the proceeding, the inquiry was purely rhetorical. This impasse, which pose the Court inwards a “impossible position” (De Londras together with Dzethtsiarou), was resolved yesteryear the eventual release of Mammadov inwards August 2018. It is real probable that the Court, seeking to avoid existence 1 time to a greater extent than called upon to sanction the lack of effectiveness of its ain judgments, issued precise instructions to address the employment of non-execution, a employment which is, indeed, political.

However, the relevance of these measures goes beyond a mere assistance to the Committee of Ministers inwards supervising the implementation of the judgments.

A closer hold off at the final judgments inwards which the Court indicated measures of full general application nether Article 46, reveals that, inwards the final 4 years, this practise alone concerned States amongst compliance problems amongst the requirements of the dominion of law, inwards detail Azerbaijan, Hungary, Poland, Russia, Turkey together with Ukraine. This blueprint suggests that Aliyev may real good live component of a judicial strategy of the Court aimed at enhancing the persuasive strength of its rulings. In this reading, the issuing of full general recommendations tin post away live seen every bit a compromise betwixt a judgment inwards which the Court alone orders the State to pay simply satisfaction nether Article 41 ECHR, together with a airplane pilot or quasi-pilot judgment inwards which the Court prescribes specific measures to adopted yesteryear the Respondent State inwards its operative part. This strategy allows the Court to drib dead on exerting its beneficial influence over countries characterized yesteryear a dominion of constabulary backsliding, without causing a straight clash amongst non-abiding States, every bit this may testify fatal for the real existence of the Council of Europe.

4. Conclusions

Witnessing the possible emergence of novel legal approaches is an exciting matter but alone the examine of fourth dimension together with subsequent judgements volition demo whether the Court is genuinely developing a novel examine nether Article 18. In this regard, the Navalny case, currently pending before the Grand Chamber, offers a expert chance for the Court to farther consolidate its case-law, together with to revisit its predominant run test.

What is certain is that this provision is “the alone criterion musical instrument for democracy” the Convention regime offers. Backing this provision upward yesteryear taking on a to a greater extent than proactive stance nether Article 46 inwards situations where similar violations recur, leaves the Court amend equipped to challenge State practices that repeatedly violate the dominion of constabulary together with unopen spaces for civil society. The dominion of constabulary backsliding is non intrinsic to the Convention scheme but emerged real prominently inwards the European Union, where the so-called Copenhagen dilemma – i.e. the inquiry of how to discover effective agency to ensure continuous abide by of the organisation’s values together with sanction violations thereof, 1 time a State has successfully acceded but fails to comply – remains unsolved.

However, the recent business of case-law from Strasbourg, of which Aliyev is the final piece, hints which role could live reserved for the European Court of Human Rights inwards cases where States abusively undermine commonwealth yesteryear targeting individuals.

Barnard & Peers: chapter 9

Photo credit: ISHR

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