Thread by @cohelongo

The Ilgar Mammadov Article 46-1 judgment here, there's been a violation and there are numerous separate opinions. Reading starts now, hot takes to commence ASAP!

For non-ECHR friends: this is a case about infringement proceedings against Azerbaijan for its alleged failure to abide by final judgment of ECtHR concerning the detention & silencing of a political activist & former presidential candidate, and it's the first of its kind

i.e. this is the first set of proceedings brought under Art. 46 § 4 ECHR, as introduced by Protocol No. 14 to the Convention, which came into force in 2010

What I've speed-read so far (a summary): the Court started by addressing two main issues, the extent to which it should take into consideration the procedure before the Committee of Ministers and the time-frame it should consider.

Re the first: the Court is wary of upsetting the balance between itself & CM, but finds that it is "required to make a definitive legal assessment of the question of compliance", thereby taking into account procedure before CM, position of the Gov't and submissions of the victim.

Re the time-frame: date of referral of question under 46(4) to Court by CM is date on which it deems that State has refused to abide by a final judgment. That means applicant's release wasn't to be considered, because came after institution of proceedings (good faith issue).

Then to the case itself, which was about an opposition politician charged with criminal offences and detained after comments he made on his blog. In 2014 the Ct. found that he had suffered violations of arts. 5(1)(c) and 5(4), 6(2) and 18. The CM called for his immediate release.

In 2017 the CM asked the Court under Article 46(4) “whether the Republic of Azerbaijan [had] failed to fulfil its obligation under Article 46 § 1”. The Court considered the core of this question to be the failure to adopt individual measures re the violation of Article 18+5.

The Court also found that just satisfaction & general measures could fall under infringement proceedings, but don't require detailed examination here (just satisfaction had been paid).

Then it gets more juicy: looking at the violations found in Mammadov, the Court noted that there was no suggestion of a "plurality of purposes" in the domestic proceedings (referring to the test established by the GC in Merabishvili, which came before the 2 Mammadov judgments!)

So, no part of the proceedings pursued a legitimate reason, & authorities aimed to silence or punish Mr Mammadov for criticising the Gov't. Article 18 aims to prohibit misuse of power. So, violation of Art 18+5 "vitiated any action resulting from the imposition of the charges."

Under Article 46, States must take individual measures in domestic legal order to end violations & redress their effects. Primary aim is restitutio in integrum. State obligated to lift or annul the charges & end Mr Mammadov’s pre-trial detention.

Pre-trial detention was ended when appl was convicted in 2014. But charges were never annulled, conviction based wholly on them. So, didn't matter that pre-trial detention ended.

Since 2014, CM has been calling for Mr Mammadov's immediate release. In 2018 he was released. B/c Art 18 violation vitiated the domestic proceedings, and the systematic flaws of the proceedings, was not premature to require his release before conclusion of domestic proceedings.

Concluding, the Court recalled the presumption of good faith & need to guarantee rights that are practical & effective. Failure to implement judgments incompatible with the rule of law. Rapid & full execution vital for Court's authority, credibility.

Azerbaijan did take some steps towards executing the first Mammadov judgment (paid just satisfaction, presented an Action Plan). Released him in 2018. But: this came after the referral to the Court of the question under 46(4). So, no “good faith”; violation of Article 46 § 1.

My impressions so far: the Court’s retroactive approach to the plurality of purpose test is odd, & negates the fact that Merabishvili was a massive change in approach & not just a confirmation of existing standards

It’s not clear why it was necessary to do this, except maybe because judges are aware that the pre-Merabishvili approach was untenable.

The Court also took a very no-nonsense, practical approach to whether the end of pre-trial detention through conviction meant that the State had complied (a question Floris Tan has raised elsewhere).

PS the various sep. ops. incl. arguments that question scope of the (1st) Mammadov judgment & that say CM interfered impermissibly with ongoing domestic judicial proceedings by ordering release, that State had choice of means, & that question CM’s powers & Ct’s legitimacy (!).

And yet, as @dzehtsiarou just pointed out in a tweet I wish I had the skills to link to this thread, the judgment is *unanimous* - these fundamental criticisms were raised in *concurring* opinions.