Dr Marco Antonio Simonelli, PhD, University of Siena, and Alast Najafi, LLM candidate, University of Leiden
In its recent judgment of Aliyev v. Azerbaijan, the European Court of Human Rights (hereafter the Court) activated anew the long dormant Article 18 ECHR (which provides that States shall not abuse the possible limitations on human rights which the Convention allows) to unanimously find a violation thereof. The judgment is the third case this year where the Court found an Article 18 violation in Azerbaijan, but still remains unprecedented, since it allowed the Court for the first time to find a violation of that provision in conjunction with Article 8 ECHR (the right to private and family life). The judgment also indicates the measures to be adopted by the Azeri Government to execute the judgement, while drawing at the same time a dramatic picture of the political situation in Azerbaijan.
The present piece briefly illustrates the facts of the case, to subsequently consider the application of Article 18 in the light of the test elaborated by the Grand Chamber in Merabishvili v. Georgia (1). It is claimed that whilst, on paper, the “predominant purpose” test may be flawed, its application in Aliyev unveils Article 18’s promising potential in countering rule of law backsliding (2). In a third step, the significance of the recommendations given by the Court under Article 46 ECHR will be examined, that prove themselves as being a useful tool for enhancing the European supervision of “rebel” States, while leaving the more political aspects of the Convention’s enforcement mechanisms to the Committee of Ministers (3). In the conclusions, it will be sketched out which role Strasbourg could play in safeguarding democracy across Europe (4).
1. The facts
Similar to the facts in Rasul Jafarov v. Azerbaijan, the case concerned criminal proceedings brought against a civil-society activist, well-known human rights defender and chairman of a non-governmental organisation. Charged for illegal entrepreneurship, large-scale tax evasion and aggravated abuse of power, the applicant was detained, and several documents and objects were seized during the search of his association’s office and home. While still in detention, new charges were brought against the applicant that lead to a five-year suspended sentence and his release in March 2016. The Court held that there had been, inter alia, a violation of Article 18 taken in conjunction with Articles 5(1)(c) (concerning pre-trial detention) and 8(2) ECHR, since both his detention and the search of his office and home pursued the illegitimate aim to silence and punish the applicant for his activities in the field of human rights.
2. The considerations under Article 18
Article 18 ECHR states that restrictions on Convention rights shall not be applied for any purpose other than those for which they have been prescribed. For a long time, this Article has not been of any practical importance in the Court’s jurisprudence. Yet, a slow but steady rise can be observed since 2004, when the Court for the first time found a violation of that provision in Gusinskiy v. Russia, leading to eleven violations to the present day. This judicial chain culminated, at the end of 2017, in the Grand Chamber ruling in Merabishvili, which set out general principles with regards to the interpretation and application of Article 18. (See the Court’s guide to the application of Article 18).
Reiterating its findings in Merabishvili, the Court reaffirms the much criticized “predominant purpose” test. Indeed, this test faced criticism since the very moment of its genesis: the two concurring opinions attached to the judgment in Merabishvili attack the test for being vaguely defined and not providing objective criteria, and also scholars considered the test to be too narrowly constructed. Be that as it may, the test prescribes that a restriction of one of the substantive rights of the ECHR engages the responsibility of a State under Article 18 when a purpose which is prescribed by the Convention only serves to mask an illegitimate predominant and ulterior purpose. Contrary to what the Government tried to argue, the Court also confirms the main novelty of the Merasbishvili judgment, namely that States no longer enjoy a general presumption of good faith.
Applying these principles to the present case, the Court points out that the “combination of the relevant case-specific facts in the applicant’s case [were] similar to that of Rasul Jafarov (…) where proof of ulterior purpose derived from a juxtaposition of the lack of suspicion with contextual factors”. Unlike in Khodorkovskiy v. Russia, no “healthy core” was to be found in the charges against the applicant. Therefore, the Court, after delivering a comprehensive and alarming analysis of the political situation in Azerbaijan - the Court points out restrictive legislation towards non-governmental organisations and the fact that “[s]everal notable human-rights activists have been similarly arrested and charged with serious criminal offences” (Aliyev, §208-214) - has no problem in finding a violation of Article 18 in conjunction with Article 5 and 8 ECHR.
The manner in which the Court reached the conclusion that there has been a violation of Article 18 sheds a new light on the relevance of the “predominant purpose” test. In Merabishvili, the Court considered as non-decisive the evidence submitted by the applicant in an attempt to demonstrate that his detention had been politically motivated. By contrast, in the present case, the political situation appears to have played a decisive role in the Court’s assessment.
A paradigmatic example is provided by the different weight attached to the statements from government officials. While considering in Merabishvili that “[s]uch statements can only be seen as proof of ulterior purpose (…) if there is evidence that the courts were not sufficiently independent” (§ 324); the Court’s finding in Aliyev that “the applicant’s arrest was accompanied by stigmatising statements made by public officials” (§ 210) amounts to an element of proof to conclude that the proceedings brought against the applicant were politically motivated. This new approach to the application of Article 18 ECHR aligns better with what Judges Yudkivska, Tsotsoria and Vehabović had in mind when writing their separate opinion in Merabishvili: “when there is evident misuse of State machinery for improper political ends, the Court should treat it by default as the predominant purpose and thus find a violation of Article 18” (Joint Concurring Opinion of Judges Yudkivska, Tsotsoria and Vehabovic, § 38).
3. The “recommendations” under Article 46: a new instrument of European supervision?
After having decided the case on the merits, the Court moves on to consider the application of Article 46 ECHR (§ 220-228), which concerns the legal force of Court judgments. Considering its earlier case-law, where the Court had already found Article 18 violations in Azerbaijan, the Court finds that the events “cannot be considered as isolated events” but reveal a “troubling pattern” of arbitrary arrest and detention of government critics and human rights activists and a “misuse of criminal law in defiance of the rule of law” (Aliyev, §223). Furthermore, the Court notices that applications raising similar issues have been communicated to the Azerbaijani Government or are pending before the Court.
It has to be underlined that the Court was not only faced with a practice incompatible with the Convention but with a State which openly disregards the rule of law, as the Court worryingly stressed itself. Indeed, the measures to be adopted when domestic courts limit themselves to an “automatic endorsement of the prosecution’s application” (Aliyev, §223) can hardly be identified.
Nonetheless, the Court decided to indicate general measures to be taken by Azerbaijan to comply with the judgment, i.e. the eradication of politically motivated prosecution against human rights activists. The practice to indicate measures of general application - without going the whole way of a pilot- judgment procedure – is becoming ever common in Strasbourg case-law (Sicilianos, 2017). However, notwithstanding their frequent use by the Court, the assessment of their legal value proves to be complex.
A prompt answer can be given by restricting the analysis to the operative part of the judgment: if the Court’s indications are not echoed in the operative part, they can be considered by the respondent State as no more than obiter dicta.
Such a conclusion proves unsatisfactory in the present case. On the one hand the judgment fails to address concrete measures towards Azerbaijan in its operative part. Yet, on the other hand, the formulations chosen by the Court – “the respondent State must focus on the protection of critics of the government”, “[t]he measures to be taken must ensure the eradication of retaliatory prosecutions”, “The individual measures to be taken by the respondent State [..] must be determined in the light of the terms of the Court’s judgment” (Aliyev, §226-227) – are of a strong prescriptive nature and cannot be classified as mere recommendations.
The most satisfying answer, at least in the present case, is to view these indications rather as a message directed at the Committee of Ministers (which has the task of following up the implementation of the Court’s judgments under Article 46 ECHR) than at the Azeri Government; in fact, there are two good reasons to think so.
First, according to Article 46(2) ECHR, the primary responsibility for the supervision of the execution of judgments lies with the Committee of Ministers; thus these “recommendations” can be considered as the backdrop against which the Committee of Ministers has to evaluate the implementation of the judgement by the Respondent State. (See Villiger, in Seibert and Villiger, eds). Second, the precise nature of the indications may be interpreted as an attempt by the Court to prevent an action of the Committee of Ministers under Article 46(4) ECHR, which allows the Committee of Ministers to refer to the Court the question whether a respondent state has faithfully executed a judgement. The procedure has been harshly criticized by scholars as being a game in which the Court has nothing to win but much to lose, i.e. its legitimacy (see De Londras and Dzethtsiarou, 2017).
The Committee of Ministers triggered Article 46(4) for the first time in December 2017 to inquire whether Azerbaijan had properly executed the Court’s Judgment in Ilgar Mammadov. Since the execution of the judgment only required the release of the applicant, who was still detained at the time the Committee of Ministers launched the proceeding, the question was purely rhetorical. This impasse, which put the Court in a “impossible position” (De Londras and Dzethtsiarou), was resolved by the eventual release of Mammadov in August 2018. It is very likely that the Court, seeking to avoid being again called upon to sanction the lack of effectiveness of its own judgments, issued precise instructions to address the problem of non-execution, a problem which is, indeed, political.
However, the relevance of these measures goes beyond a mere assistance to the Committee of Ministers in supervising the implementation of the judgments.
A closer look at the last judgments in which the Court indicated measures of general application under Article 46, reveals that, in the last four years, this practice only concerned States with compliance problems with the requirements of the rule of law, in particular Azerbaijan, Hungary, Poland, Russia, Turkey and Ukraine. This pattern suggests that Aliyev may very well be part of a judicial strategy of the Court aimed at enhancing the persuasive force of its rulings. In this reading, the issuing of general recommendations can be seen as a compromise between a judgment in which the Court only orders the State to pay just satisfaction under Article 41 ECHR, and a pilot or quasi-pilot judgment in which the Court prescribes specific measures to adopted by the Respondent State in its operative part. This strategy allows the Court to continue exerting its beneficial influence over countries characterized by a rule of law backsliding, without causing a direct clash with non-abiding States, as this may prove fatal for the very existence of the Council of Europe.
Witnessing the possible emergence of new legal approaches is an exciting thing but only the test of time and subsequent judgements will show whether the Court is actually developing a new test under Article 18. In this regard, the Navalny case, currently pending before the Grand Chamber, offers a good opportunity for the Court to further consolidate its case-law, and to revisit its predominant purpose test.
What is sure is that this provision is “the only measuring instrument for democracy” the Convention regime offers. Backing this provision up by taking on a more proactive stance under Article 46 in situations where similar violations recur, leaves the Court better equipped to challenge State practices that repeatedly violate the rule of law and close spaces for civil society. The rule of law backsliding is not intrinsic to the Convention system but emerged very prominently in the European Union, where the so-called Copenhagen dilemma – i.e. the question of how to find effective means to ensure continuous respect of the organisation’s values and sanction violations thereof, once a State has successfully acceded but fails to comply – remains unsolved.
However, the recent line of case-law from Strasbourg, of which Aliyev is the last piece, hints which role could be reserved for the European Court of Human Rights in cases where States abusively undermine democracy by targeting individuals.
Barnard & Peers: chapter 9
Photo credit: ISHR