Nearly 10,000 judgments covering 46 countries have not been implemented.
By Ginger Hervey
Politico (20.09.2017) – http://politi.co/2yfnVB2 – The most sophisticated system in the world for defending human rights is facing a test. So far, it’s failing.
Nearly 10,000 judgments of the European Court of Human Rights have not been put into effect by national governments. Some of those cases were ruled on as far back as 1992, and they cover all but one of the 47 member countries of the Strasbourg-based Council of Europe, the court’s parent body and the Continent’s leading human rights organization.
The failure to implement these judgments — detailed in a Council of Europe database — means that practices have continued across Europe, in many cases for years, after being ruled violations of human rights. These range from segregating HIV-positive prisoners in Greece, to police brutality in Bulgaria, to not properly investigating deaths of prisoners in Romania.
One case in particular could soon elevate this problem to a bigger political stage. The court ruled in 2014 that the detention of Ilgar Mammadov, an opposition leader in Azerbaijan, was a human rights violation — but he is still in prison three years later.
Mammadov’s case is on the agenda at a quarterly meeting of Council of Europe ministers this week. The ministers face pressure to take the unprecedented step of sending the case back to the court for another judgment or even expelling Azerbaijan from the Council.
“We cannot have political prisoners in Europe,” Council Secretary-General Thorbjørn Jagland said in a written statement to POLITICO. “The time has come for Azerbaijan to think hard about its obligations as a member of the Council of Europe and whether it still wants to fulfill them.”
So far, however, the committee has chosen to avoid drastic measures in this or any other case in which the judgment of its own court has been ignored.
When the European Court of Human Rights finishes deciding a case, it issues a judgment. If it rules that someone’s rights were violated, it instructs the country at fault to do two things: compensate the individual who won the case, and implement any changes necessary at a national level to avoid repeat violations.
But the court doesn’t tell the country how to fix the problem; just that it needs to do so. It can issue recommendations, but it’s ultimately up to the country to decide what needs to be done.
“In cases of good people in government, it’s true that they are in a much better position to know how to best remedy the violation,” said Ramute Remezaite, a legal consultant at the European Implementation Network, an NGO that campaigns for all of the court’s judgments to be respected. “The court may not understand the national context like national authorities would. But that’s being abused by some countries.”
Once a judgment has been issued, it’s passed to the Committee of Ministers, made up of member countries’ foreign ministers. The committee puts each new case into one of two baskets: standard cases that should be fairly straightforward to implement, and enhanced cases that require urgent action or more complex, systematic change in a country — changing a law, or reforming a court or prison system, for example.
Next, the defendant country issues an “action plan” for review by the committee, detailing how it will implement the judgment. If the plan is approved, the member nation is on track to resolving the problem. It submits action reports for review until the committee decides the judgment has been fully implemented.
This follow-up system sets the Council of Europe apart; there are similar regional human rights systems elsewhere in the world, but none of them has a mechanism to check in on countries.
But it has its flaws. The body is made up of high-level politicians, and officials both inside and outside the council told POLITICO that relationships between countries have an impact on how critical ministers are willing to be of each other. The committee is also made up entirely of ministers who are themselves accountable to the system: It could be their country in the hot seat next.
Perhaps the committee’s biggest flaw is that if a country doesn’t implement a judgment, there’s not much it can do. The Council of Europe’s commissioner for human rights, Nils Muižnieks, said that as some European countries backslide on democratic standards, the court and the committee are at a loss on how to enforce judgments.
“Our work is based on cooperation and good faith,” Muižnieks said. “When you don’t have that, it’s very difficult to have an impact. We kind of lack the tools to help countries that don’t want to be helped.”
All of these factors have led to an increase in the number of judgments not being implemented — from 2,624 in 2001 to 9,944 in 2016.
Some of the most common judgments not to have been implemented concern violations by security forces and poor detention conditions. At the end of 2016, more than 3,200 of these cases had not been resolved.
In January 2013, rioting broke out in the Azerbaijani town of Ismayilli over an alleged assault on local people by a public official. Opposition politician Mammadov traveled from Baku, the capital, to see the protests firsthand.
“People are angry,” Mammadov wrote on his blog after the event. “The events in Ismayilli were not and are not a calm peaceful protest, it is an extremely violent but just protest and the responsibility for it lies with [President] Ilham Aliyev.”
Mammadov’s blog post was quoted widely in the media. A week later, after security forces broke up protests with tear gas and water cannons and arrested more than 60 people, local authorities called Mammadov in for questioning.
On February 4, he was again detained and this time arrested for “aiming to … create artificial tension and to violate the social and political stability in the country.”
Earlier that month, Mammadov had announced that he was considering running against Aliyev in the upcoming presidential election.
Mammadov was sentenced to seven years in prison, beginning in March 2014. Two months later, the European Court of Human Rights ruled that Azerbaijan — which, ironically, had taken over the rotating presidency of the Committee of Ministers just days before — had arrested Mammadov “to silence or punish [him] for criticizing the Government.”
Azerbaijan submitted an action plan; it allowed visits from Commissioner Muižnieks and a delegation conducting an inquiry for the Committee of Ministers; it even paid Mammadov €22,000 in compensation for violating his rights, as recommended by the court. But it still has not released the 47-year-old from prison.
Azerbaijan argues that it has not breached the Strasbourg-based court’s judgment, saying the court’s ruling related to Mammadov’s arrest and pre-trial detention — not his subsequent imprisonment. A separate case on that issue is still pending before the court, so Azerbaijan “firmly rejects any claim suggesting that it has refused to implement” the judgments of the court, the country’s mission to the EU said in a statement.
But Mammadov’s treatment has become a “test case of the legitimacy of the Council of Europe,” according to a petition signed by 44 civil society groups calling for the council to take action against Azerbaijan. A senior official from a Council of Europe delegation, speaking on condition of anonymity, said the committee has become more and more concerned about Azerbaijan’s “failure to engage,” which “could be perceived as displaying contempt towards the committee’s authority.”
“The entire credibility of the Committee of Ministers is at stake,” said the official.
The committee has brought up the Mammadov case at every one of its last 11 quarterly meetings — but to little obvious effect.
Even Mammadov himself, who has always been an advocate of the Council of Europe, appears disillusioned. After the Committee of Ministers declared there had been a “positive development” in his case at their June meeting, Mammadov wrote on his blog that the “Committee of Ministers laughed at me again,” and that “Mr. Aliyev joined the laughter.” Mammadov referred to this week’s meeting of the ministers as the “12th quarterly tickling” by the committee.
“I am afraid they will tickle each other to death of laughter by the end of my prison sentence,” he wrote.
If the committee decides a country has not complied with a judgment, it can enact Article 46.4 of the European Convention on Human Rights — sending the case back to the court to determine if the government has failed to act.
The option has never been used but it was discussed last year by the Committee of Ministers in Mammadov’s case. A formal vote was postponed for fear that it would not receive the necessary two-thirds majority, the official within the committee told POLITICO.
“The worst thing that could possibly happen is that it goes to the floor and the vote fails, because if you fail the first time it’s never going to be used again,” the official said.
But activists like Remezaite as well as Commissioner Muižnieks and Mammadov himself (via a letter to the committee) are calling for this option. Last Wednesday, at the Committee of Ministers’ weekly meeting, Council of Europe Secretary-General Jagland argued in favor of launching the Article 46.4 procedure, his spokesman said.
But Article 46.4 may prove to be a feedback loop: If the court again rules that Azerbaijan hasn’t obeyed, the case will simply go back to the Committee of Ministers, where it started.
Azerbaijan argues there is no need to refer the case back to the court since it is still considering Mammadov’s imprisonment.
The only other option available to the Committee would be expulsion from the Council of Europe. But Remezaite says this path is even less appealing and even more self-defeating than the last. If you expel a country for not implementing judgments, then you have no authority in the future to make them implement judgments — and no outlet for that country’s citizens to appeal to if their rights are violated.
Yet, as things stand, defenders of the court worry that its authority is crumbling as countries become bolder in defying its judgments.
The U.K. has repeatedly refused to repeal legislation preventing prisoners from voting, despite a 2006 ECHR ruling saying it was a violation of the European Convention of Human Rights. Russia has challenged prisoners’ voting rights and passed a law allowing its Constitutional Court to overrule European Court of Human Rights rulings. Denmark — which takes over the rotating presidency of the Council of Europe in November — is lobbying other governments to push back the power of the court.
“It’s worrying,” Muižnieks said. “People have forgotten why the system was created, and that it’s a game that everyone has to play by the rules or it all falls apart.”
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HRWF database of news and information on over 70 countries: https://hrwf.eu/newsletters/human-rights-in-the-world/
List of hundreds of documented cases of believers of various faiths in 20 countries: https://hrwf.eu/forb/forb-and-blasphemy-prisoners-list/