CONCURRING OPINION OF JUDGE MOTOC

(Translation)

“The genuine realist, if he is an unbeliever, will always find strength and ability to disbelieve in the miraculous, and if he is confronted with a miracle as an irrefutable fact he would rather disbelieve his own senses than admit the fact” (Dostoyevsky, The Brothers Karamazov ).

1 . This first application of Article 46 § 4 and of the “nuclear option” calls, in my view, for reflection on the legitimacy of the Court. Before addressing this issue, it is worth examining the travaux préparatoires as regards the manner of execution of the Court ’ s judgments.

2 . Those travaux préparatoires highlight a series of issues which the drafters of the Convention raised and which remain relevant today. The drafters were conscious of the difficulties linked to the execution of the Court ’ s judgments. In parallel, they drew comparisons with the International Court of Justice, whose institutional structure served as a model for constructing the European Court of Human Rights. Hence, as the travaux préparatoires show, the States ’ concern was that, in the absence of an international police force, the judgments might remain without effect. Furthermore, most of the participants in the travaux préparatoires pleaded on behalf of the role of public opinion in a democracy. It is most interesting to note that the European Movement ’ s draft stated clearly that the drift to dictatorship did not occur automatically, as illustrated by Germany before the Second World War. Once the Council of Europe had been proposed as the organisation responsible for the execution of judgments, Belgium ’ s representative, Mr Schmal, expressed the fear that only the weakest countries would be required to execute judgments, while the strongest would never be required to do so.

3 . It is also worth pointing out that Article 46 echoed word for word Article 94 of the United Nations Charter, which provides:

“1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.

2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”

4 . There is no doubt that Article 94 is one of the most heavily criticised provisions of the Charter and that although, generally speaking, States execute the judgments of the International Court of Justice, there are also cases in which they do not. The most famou s example is the judgment of 27 June 1986 in the Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) , which has never been executed by the United States [5] .

5 . Even though we are currently witnessing a judicialisation of the execution of the Court ’ s rulings, political factors, and hence the “politics of power”, appear to play an important role in the execution of the Court ’ s judgments.

6 . The issue that needs to be addressed with some urgency concerns the legitimacy of the Court. To the extent that the Belgian delegate was apparently thinking about the manner in which the Court would apply this option, it should be counterbalanced by providing it with a moral basis. The literature proposed the concept of a “living instrument” as a moral basis [6] . In so far as the agreement reached was based on the “procedural turn” and the nuclear option has been used against a State, the legitimacy of the Court needs to be reassessed.

ANNEX

Interim Resolution CM/ResDH(2017)429 Execution of the judgment of the European Court of Human Rights Ilgar Mammadov against Azerbaijan

(Adopted by the Committee of Ministers on 5 December 2017

at the 1302nd meeting of the Ministers ’ Deputies)

Application

Case

Judgment of

Final on

15172/13

ILGAR MAMMADOV

22/05/2014

13/10/2014

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Recalling its Interim Resolution CM/ResDH(2017)379 serving formal notice on the Republic of Azerbaijan of its intention, at its 1302nd meeting (DH) on 5 December 2017, to refer to the Court, in accordance with Article 46 § 4 of the Convention, the question whether the Republic of Azerbaijan has failed to fulfil its obligation under Article 46 § 1 to abide by the Court ’ s judgment of 22 May 2014 in the Ilgar Mammadov case, and inviting the Republic of Azerbaijan to submit in concise form its view on this question by 29 November 2017 at the latest;

Recalling anew

a. that in its above-mentioned judgment, the Court found not only a violation of Article 5 § 1 of the Convention, as no facts or information had been produced giving rise to a suspicion justifying the bringing of charges against the applicant or his arrest and pre-trial detention, but also a violation of Article 18 taken in conjunction with Article 5, as the actual purpose of these measures was to silence or punish him for criticising the government;

b. the respondent State ’ s obligation, under Article 46 § 1 of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, in addition to the payment of the just satisfaction awarded by the Court, the adoption by the authorities of the respondent State, where required, of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ;

c. the Committee ’ s call, at its first examination on 4 December 2014, of the individual measures required in the light of the above judgment to ensure the applicant ’ s release without delay;

d. the Committee ’ s numerous subsequent decisions and interim resolutions stressing the fundamental flaws in the criminal proceedings revealed by the Court ’ s conclusions under A rticle 18 combined with Article 5 of the Convention and calling for the applicant ’ s immediate and unconditional release;

e. that the criminal proceedings against the applicant concluded on 18 November 2016 before the Supreme Court without the consequences of the violations found by the European Court having been drawn, in particular, that of Article 18 taken in conjunction with Article 5 of the Convention;

f. that, over three years since the Court ’ s judgment became final, the applicant remains in detention on the basis of the flawed criminal proceedings;

Considers that, in these circumstances, by not having ensured the applicant ’ s unconditional release, the Republic of Azerbaijan refuses to abide by the final judgment of the Court;

Decides to refer to the Court, in accordance with Article 46 § 4 of the Convention, the question whether the Republic of Azerbaijan has failed to fulfil its obligation under Article 46 § 1;

The concise views of the Republic of Azerbaijan on the question raised before the Court are appended hereto:

Appendix: Views of the Republic of Azerbaijan

“INTRODUCTION

1. At their 1298th meeting of 25 October 2017, the Ministers ’ Deputies adopted Interim Resolution CM/ResDH(2017)379, in which the Committee served formal notice on the Republic of Azerbaijan of its intention, at its 1302nd meeting (DH) on 5 December 2017, to refer to the Court, in accordance with Article 46 § 4 of the Convention, the question whether the Republic of Azerbaijan has failed to fulfil its obligation under Article 46 § 1 of the Convention arising following the Court ’ s judgment in Mammadov v. Azerbaijan (no.15172/13, 22 May 2014).

2. In response to the Committee ’ s invitation extended in the Deputies ’ above Interim Resolution, the Government of the Republic of Azerbaijan submit their views concerning the question of execution of the Court ’ s judgment in the above case.

THE FACTS

3. On 4 February 2013 the applicant was charged with criminal offences under Articles 23 (organising or actively participating in actions causing a breach of public order) and 315.2 (resistance to or violence against public officials, posing a threat to their life or health) of the Criminal Code, and arrested by the decision of the Nasimi District Court. On 30 April 2013 the applicant was charged under Articles 220.1 (mass disorder) and 315.2 of the Criminal Code.

4. On 17 March 2014 the Shaki Court for Serious Crimes convicted the applicant under Articles 220.1 and 315.2 of the Criminal Code and sentenced him to seven years ’ imprisonment.

5. On 24 September 2014 the Shaki Court of Appeal upheld the judgment of the court of first instance. Article 407.2 of the Criminal Code of the Republic of Azerbaijan provides that the judgment shall be final immediately after delivery of the decision of the Court of Appeal. Accordingly, as from 24 September 2014, the applicant was not under the pre-trial detention; he was serving his sentence.

6. On 22 May 2014 the Court (First Section) adopted judgment, in which it found violation of Article 5 §§ 1 (c) and 4, Article 6 § 2 of the Convention, and Article 18 of the Convention taken in conjunction with Article 5 of the Convention. This judgment was final on 13 October 2014.

THE COMMITTEE OF MINISTERS ’ PROCEDURES FOR SUPERVISION OF EXECUTION OF THE COURT ’ S JUDGMENTS

7. Rule 6 of the CM Rules reads as follows:

“1. When, in a judgment transmitted to the Committee of Ministers in accordance with Article 46, paragraph 2, of the Convention, the Court has decided that there has been a violation of the Convention or its protocols and/or has awarded just satisfaction to the injured party under Article 41 of the Convention, the Committee shall invite the High Contracting Party concerned to inform it of the measures which the High Contracting Party has taken or intends to take in consequence of the judgment, having regard to its obligation to abide by it under Article 46, paragraph 1, of the Convention.

2. When supervising the execution of a judgment by the High Contracting Party concerned, pursuant to Article 46, paragraph 2, of the Convention, the Committee of Ministers shall examine:

a. whether any just satisfaction awarded by the Court has been paid, including as the case may be, default interest; and

b if required, and taking into account the discretion of the High Contracting Party concerned to choose the means necessary to comply with the judgment, whether:

i. individual measures have been taken to ensure that the violation has ceased and that the injured party is put, as far as possible, in the same situation as that party enjoyed prior to the violation of the Convention;

ii. general measures have been adopted, preventing new violations similar to that or those found or putting an end to continuing violations.”

INDIVIDUAL MEASURES ADOPTED

8. On 25 December 2014 a total amount of 22,000 euros was paid to the applicant in respect of nonpecuniary damage and costs and expenses.

9. By its decision of 13 October 2015, the Supreme Court quashed the Shaki Court of Appeal ’ s judgment of 24 September 2014, finding that the lower court ’ s rejection of the applicant ’ s requests for examination of additional witnesses and other evidence had been in breach of the domestic procedural rules and the requirements of Article 6 of the Convention. The case was remitted to the Shaki Court of Appeal for a new examination in compliance with the domestic procedural rules and the Convention requirements.

10. On 29 April 2016 the Shaki Court of Appeal finalized examination of the applicant ’ s case and upheld the judgment of the Shaki Court for Serious Crimes of 17 March 2014. It, particularly carefully addressed the Court ’ s conclusions drawn in the present judgment and remedied the deficiencies found in the proceedings leading to the applicant ’ s conviction.

GENERAL MEASURES

11. In December 2015, under Article 52 of the Convention, the Secretary General of the Council of Europe launched an inquiry to find out how the domestic law in any member state makes sure that the convention is properly implemented.

12. On 11 January 2017 the mission set up by the Secretary General visited Azerbaijan and held discussions, with judicial, legislative and executive authorities, to cover all issues related to execution of the Court ’ s judgment in the applicant ’ s case. Authorities have confirmed their readiness to examine all avenues suggested by the mission to further execute the Court ’ s judgment.

13. On 10 February 2017, President of the Republic of Azerbaijan signed Executive Order “On improvement of operation of penitentiary, humanization of penal policies and extension of application of alternative sanctions and non ‑ custodial procedural measures of restraint”.

14. Executive Order covered a number of questions raised by the Court in its judgment, including existence of reasonable suspicion of having committed an offence at the time of arrest and consideration of alternative measures of restraint by relevant authorities.

15. Further humanisation of penal policies in Azerbaijan was listed among the aims of the document. It said that, in application of measures of restraint by investigation authorities and courts, provisions of criminal procedure law concerning grounds for arrest should be strictly complied with, and the level of application of alternative sanctions and measures of procedural compulsion extended to attain aims of punishment and of measure of restraint through non-custodial means.

16. The President of the Republic of Azerbaijan recommended to the Supreme Court, the General Prosecutor ’ s Office and instructed the Ministry of Justice with elaboration of the draft laws concerning decriminalisation of certain crimes; provision of the sentences alternative to imprisonment; development of grounds for non-custodial measures of restraint and sentences alternative to imprisonment; wider application of institutions of substitution of remainder of imprisonment by lighter punishment, parole and suspended sentence; extension of cases of application of measures of restraint alternative to arrest; simplification of rules for amendment of arrest by alternative measures of restraint; and further limitation of grounds for arrest for low-risk or less serious crimes.

17. The President also recommended to the Office of the Prosecutor General to start with examination of alternative measures of restraint when considering motions for arrest.

18. It was also recommended to the courts that they examine the existence of reasonable suspicions of individual ’ s having committed an offence and grounds for arrest, when deciding on measure of restraint, and arguments in favour of alternative measures.

19. According to Executive Oder, the Supreme Court shall hold continued analysis of case-law of the courts concerning application of arrest and imposition of imprisonment.

20. On 20 October 2017 the Milli Medjlis of the Republic of Azerbaijan adopted the Law on Amendments to the Criminal Code, amending more than three hundred provisions of the criminal legislation. Along with decriminalization of certain acts, the law provides for introduction of sanctions alternative to imprisonment and more simplified rules concerning early release. It shall enter into force on 1 December 2017. The law provides for inclusion of Article 76.3.1-1 opening possibility of conditional release after serving of two-thirds of the term of imprisonment imposed for commitment of serious crimes. Further to this amendment, the applicant would be eligible for conditional release as from 4 August 2017.

21. On 1 December 2017 the Parliament shall also examine, in the third reading, amendments to the Code of Criminal Procedure and the Penal Code, which are in line with the recommendations addressed in the Presidential Decree.

22. In the meantime, following the recommendations given to the investigation and judicial authorities, the number of detainees held in the pretrial detention facilities continues to decrease: the number of detainees held in pretrial detention facilities decreased by 25% in nine months. In addition, the number of judicial decisions concerning the arrest of individuals decreased by 24% in in comparison to 2016.

23. In sum, having regard to absence of the Court ’ s any ruling to secure the applicant ’ s immediate release and the discretion of the High Contracting Party to choose the means necessary to comply with the Court ’ s judgment, the Government consider that they implement necessary measures to comply with the Court ’ s judgment in the present case.”

[1] . A second application concerning those proceedings was introduced by Mr Mammadov on 19 December 2014.

[2] . A summary of the execution process is set out in the presentation of the case at the Committee of Ministers’ 1273 rd Human Rights meeting (6-8 December 2016 (see CM/Notes/1273/Item H46-3)).

[3] . For the text of the Articles and Commentary, see the Report of the International Law Commission on the Work of its Fifty-third Session, Official Records of the General Assembly, Fifty-sixth Session ( Supplement no. 10 (A/56/10), chap. IV.E.1 and chap. IV.E.2, pp. 46 and 133- 1 45). The text of the Articles is annexed to General Assembly resolution 56/83 of 12 December 2001 and cor rected by document A/56/49 (Vol. I)/Corr.4.

[4] . This sentence is missing in the French version of the commentaries.

[5] . Wessendorf, Nikolai, Simma, Bruno et al., The C harter of the United Nations: A Commentary , vol s . 1 and 2, Oxford University Press, 2012 .

[6] . See , for example , Letsas, George, The ECHR as a Living Instrument: Its Meaning and its Legitimacy , 2012 .