On credibility of CoE protections
Two days ago, on 13 July 2021, I made the following presentation at an online briefing arranged by the European Implementation Network (EIN):
Mr Gerrits, Professor Leach,
Thank you for inviting me to speak today at this briefing. Execution of judgments of the European Court of Human rights is a matter of credibility of the Council of Europe protections in the eyes of individuals living in member states.
Without such credibility the system cannot function. Protections cannot be theoretical. Time is the main factor that makes the protections more practical. When it comes to politicians, time is also a measurement of electoral cycles.
The government of Azerbaijan, and may be of many other countries, have been demonstrating much better understanding of the time dimension of credibility of the system. That is why the Government has been very successful in manipulating and procrastinating the Council of Europe procedures in my case.
Let us look at the opportunities that current system of legal and political relations within the Council of Europe is providing the governments with. Membership in the Council allows them to imprison a presidential candidate for almost two years with zero consequences because it is believed that a member state cannot have a judicial system uncapable of rectifying its own errors.
So, in February 2013, 8 months before the presidential elections, I was jailed, and the Council could not do anything about that. The philosophy of this time advantage given to the member government is that if its actions fail in the European Court, the government will be punished at the next elections by voters.
In May 2014 the European Court has found that I have been arrested for political reasons. Normally, by August the same year I was supposed to be acquitted. However, the government appealed - to win extra time bonus. Its appeal was turned down in October. Hence, by February 2015, that is precisely 2 years after the arrest, I was supposed to be exonerated.
The above 2 years is the period during which the government feels very confident. It is a respected member of a respected institution.
The 2 years indulgence would be tolerable if other elements of the system functioned well. For example, if released I could lead opposition to the November 2015 parliamentary elections to compete against humiliated government.
However, the government also knew that. So, it started procrastinating the Committee of Ministers procedure. It took 3 years for the Committee of Ministers - between December 2014 and 2017 - to finally initiate the infringement procedure.
During these 3 years the government run general parliamentary elections, and a referendum on the topic of primary concern for our party. I spent all that time behind bars.
Four months after the initiation of the infringement procedure the government conducted another presidential election, six months ahead of schedule. Only after that the government felt that it can release me.
However, even after the conditional release in August 2018, legally I could not stand as a candidate. Full acquittal occurred only AFTER the snap parliamentary elections in 2020.
And the next regular elections will happen only in 2025 - because the above referendum, inter alia, changed the electoral cycle in the country.
It is obvious that the government exploited its Council of Europe membership privilege to keep me behind bars for almost 6 years, and out of elections for 12 years.
12 years means an effective ban on the profession of politician. And those 12 years are not over. Who knows what the government will invent in future to keep me away from polls?
What options did I have as a politician during the period before the full acquittal? One should bear in mind: the government had maintained that I was guilty of inciting violent street protests. Thus, if in the situation of practical paralysis of the ECHR-related legal means of defence I relied too much on street action, the government could easily arrange for a provocation and attribute it to me. Then the government would feel confident again in arguing with the Committee of Ministers. And the Committee would be forced by the mere fact of Azerbaijan’s membership to be respectful to the blatant lies of the government - just like many in the Committee had already been for years. Nevertheless, during a year and a half after the conditional release I called twice on people to rally for different political causes. I could not compromise fundamental political right to concerns about too formalistic approach of Council of Europe diplomats prone to procrastination.
The reality I described above is particularly ruthless to politicians - when the government is highly motivated. Let me underline that when society tries to assess credibility of Council of Europe protections it looks in the first place at the fate of politicians who challenge the government by championing European democratic values. People are right to ask: “If the system fails to protect you, how is it going to protect others?”
In conclusion let me address one more aspect of the problem of non-execution of Court judgments. When the government orders illegal and politically motivated arrests there are concrete people who manage that process. By the time when the Government achieves all the important goals of this wrongdoing and is not necessarily interested in non-execution anymore, the same group who had administered the process become a highly motivated interest group within the Government and obstruct the execution.
The 2013-2016 crackdown on Azerbaijani politicians and civil society has been administered by the same group of people within the government who now oppose acquittals in the formerly Ilgar Mammadov and now Mammadli Group of cases. It was their responsibility to arrange perfectly, in legal terms, the repressions. They failed, and therefore they do not want to carry the blame within the system. How this knowledge can be helpful? Maybe we should start talking about that publicly, but the problem is that these people still are at top positions in law enforcement. They may respond destructively in line with their own ethical standards if the Government’s failure to fabricate criminal cases is attributed entirely to their incompetence.
Finally, I think if the European Court of Human Rights wants to continue as a Court its judgments should be executed as quickly as the judgments of the national courts. At least when it comes to individual measures. Otherwise we should consider a different name for this respected and professionally very competent institution to prevent any illusions in the society.
Mr Gerrits, Professor Leach,
Thank you for inviting me to speak today at this briefing. Execution of judgments of the European Court of Human rights is a matter of credibility of the Council of Europe protections in the eyes of individuals living in member states.
Without such credibility the system cannot function. Protections cannot be theoretical. Time is the main factor that makes the protections more practical. When it comes to politicians, time is also a measurement of electoral cycles.
The government of Azerbaijan, and may be of many other countries, have been demonstrating much better understanding of the time dimension of credibility of the system. That is why the Government has been very successful in manipulating and procrastinating the Council of Europe procedures in my case.
Let us look at the opportunities that current system of legal and political relations within the Council of Europe is providing the governments with. Membership in the Council allows them to imprison a presidential candidate for almost two years with zero consequences because it is believed that a member state cannot have a judicial system uncapable of rectifying its own errors.
So, in February 2013, 8 months before the presidential elections, I was jailed, and the Council could not do anything about that. The philosophy of this time advantage given to the member government is that if its actions fail in the European Court, the government will be punished at the next elections by voters.
In May 2014 the European Court has found that I have been arrested for political reasons. Normally, by August the same year I was supposed to be acquitted. However, the government appealed - to win extra time bonus. Its appeal was turned down in October. Hence, by February 2015, that is precisely 2 years after the arrest, I was supposed to be exonerated.
The above 2 years is the period during which the government feels very confident. It is a respected member of a respected institution.
The 2 years indulgence would be tolerable if other elements of the system functioned well. For example, if released I could lead opposition to the November 2015 parliamentary elections to compete against humiliated government.
However, the government also knew that. So, it started procrastinating the Committee of Ministers procedure. It took 3 years for the Committee of Ministers - between December 2014 and 2017 - to finally initiate the infringement procedure.
During these 3 years the government run general parliamentary elections, and a referendum on the topic of primary concern for our party. I spent all that time behind bars.
Four months after the initiation of the infringement procedure the government conducted another presidential election, six months ahead of schedule. Only after that the government felt that it can release me.
However, even after the conditional release in August 2018, legally I could not stand as a candidate. Full acquittal occurred only AFTER the snap parliamentary elections in 2020.
And the next regular elections will happen only in 2025 - because the above referendum, inter alia, changed the electoral cycle in the country.
It is obvious that the government exploited its Council of Europe membership privilege to keep me behind bars for almost 6 years, and out of elections for 12 years.
12 years means an effective ban on the profession of politician. And those 12 years are not over. Who knows what the government will invent in future to keep me away from polls?
What options did I have as a politician during the period before the full acquittal? One should bear in mind: the government had maintained that I was guilty of inciting violent street protests. Thus, if in the situation of practical paralysis of the ECHR-related legal means of defence I relied too much on street action, the government could easily arrange for a provocation and attribute it to me. Then the government would feel confident again in arguing with the Committee of Ministers. And the Committee would be forced by the mere fact of Azerbaijan’s membership to be respectful to the blatant lies of the government - just like many in the Committee had already been for years. Nevertheless, during a year and a half after the conditional release I called twice on people to rally for different political causes. I could not compromise fundamental political right to concerns about too formalistic approach of Council of Europe diplomats prone to procrastination.
The reality I described above is particularly ruthless to politicians - when the government is highly motivated. Let me underline that when society tries to assess credibility of Council of Europe protections it looks in the first place at the fate of politicians who challenge the government by championing European democratic values. People are right to ask: “If the system fails to protect you, how is it going to protect others?”
In conclusion let me address one more aspect of the problem of non-execution of Court judgments. When the government orders illegal and politically motivated arrests there are concrete people who manage that process. By the time when the Government achieves all the important goals of this wrongdoing and is not necessarily interested in non-execution anymore, the same group who had administered the process become a highly motivated interest group within the Government and obstruct the execution.
The 2013-2016 crackdown on Azerbaijani politicians and civil society has been administered by the same group of people within the government who now oppose acquittals in the formerly Ilgar Mammadov and now Mammadli Group of cases. It was their responsibility to arrange perfectly, in legal terms, the repressions. They failed, and therefore they do not want to carry the blame within the system. How this knowledge can be helpful? Maybe we should start talking about that publicly, but the problem is that these people still are at top positions in law enforcement. They may respond destructively in line with their own ethical standards if the Government’s failure to fabricate criminal cases is attributed entirely to their incompetence.
Finally, I think if the European Court of Human Rights wants to continue as a Court its judgments should be executed as quickly as the judgments of the national courts. At least when it comes to individual measures. Otherwise we should consider a different name for this respected and professionally very competent institution to prevent any illusions in the society.
