Implementing political persecution judgments: Civil society advocacy efforts help put infringement on the horizon

Introduction

By Ioana Ilescu, EIN Law and Advocacy Officer

This blog piece aims to show how ongoing civil society advocacy for the implementation of political persecution ECtHR judgments in Azerbaijan, Russia and Turkey has been key in maintaining the international spotlight remains on these cases, slowly pushing progress forward, ensuring that the cases are not set aside and forgotten due to deceptive government arguments, and in evolving the Committee of Ministers’ approach to assessing the implementation of political persecution cases.

Backlash against human rights defenders and government critics

Photo: civicsolidarity.org

ECtHR judgments regarding the misuse of criminal law against human rights defenders and government critics have been piling up since 2013 in Azerbaijan – with the former Mammadov, now Mammadli group of cases -, in Turkey – with the cases of philanthropist Osman Kavala and opposition politician Selahattin Demirtaş (no. 2), and in Russia, with the case of opposition politician and anti-corruption activist Alexey Navalny.

The common thread behind these cases is the intention of the government to punish and silence its’ critics, whether they are opposition politicians, civil society activists, human rights lawyers or journalists.

Photo Credit: Council of Europe - Ilgar Mammadov

In Azerbaijan, opposition politician and activist Ilgar Mammadov, was arrested after having announced his candidacy for the presidency. Co-founder of the political movement Republican Alternative Civic Movement (REAL), Natig Jafarov, was arrested after having campaigned against the amendments to the Constitution proposed by the president. Human rights lawyers and civil society activists, Rasul Jafarov and Intigam Aliyev, were imprisoned following smear campaigns against them by State media reports, after having participated in a side event organised in the Council of Europe, delivering a report on human-rights abuses in Azerbaijan.  Electoral monitoring activist Anar Mammadli was arrested after having reported that the presidential elections had failed to comply with democratic standards. In other cases, civil society activists from the civic movement NIDA were arrested after having organised peaceful demonstrations, while others were arrested on false drug charges and subjected to ill-treatment in retaliation for having sprayed political graffiti on the statue of the former Azerbaijani president. The pattern continued with a new wave of arrests in March 2020.

In Turkey, opposition politician and leader of the pro-Kurdish Party, Selahattin Demirtaş, had had his parliamentary immunity lifted by authorities so he could be prosecuted for critical statements made as MP regarding the Kurdish issue in Turkey. He has been imprisoned since 2016. Philanthropist Osman Kavala has been imprisoned since 2017, accused of attempting to overthrow the government within the context of the Gezi Park events of 2013 and of attempting to overthrow the constitutional order within the context of the attempted coup in July 2016.

Photo credit: Evgeniy Isaev

In Russia, opposition politician and anti-corruption activist Aleksey Navalny has been imprisoned since January 2021, following a criminal conviction which the Court has already established to be based on an unfair trial and an arbitrary application of criminal law.

Intense civil society advocacy efforts in the past years have succeeded in raising the profile of these cases internationally, which led to a significant increase of diplomatic pressures for their implementation. At the Committee of Ministers level, these pressures have initially led to the first application of infringement proceedings under Article 46 § 4 against Azerbaijan, in 2019, which resulted in the release and acquittal of Ilgar Mammadov. Furthermore, the past year has seen a gradual increase in the use of ‘pre-infringement’ steps, as well as a positive evolution of the Committee of Ministers’ approach on political persecution cases. However, much more remains to be done to achieve implementation of these cases, ensuring both the release and acquittal of all applicants in political persecution cases, as well as the non-repetition of new similar cases.

Initial progress and challenges

While the Azerbaijani applicants (in the Mammadli group of cases) had been released from imprisonment following presidential pardons – as opposed to their Russian and Turkish counterparts which remain in prison to this day - all the applicants’ criminal convictions remained standing, leaving them with criminal records and unable to practice their professions or exercise their political rights. After a series of submissions to the Committee of Ministers highlighted the authorities’ inaction regarding the acquittal and the payment of just satisfaction in the cases of several applicants, in April 2020, Ilgar Mammadov and Rasul Jafarov were finally acquitted by the Azerbaijan Supreme Court. But for the other applicants, the situation has not been remedied.

As for the Turkish cases, implementation had proven to be even more challenging. In Kavala and Demirtaş, the Turkish authorities have been engaging in several evasive judicial tactics meant to circumvent the judgments’ implementation and maintain the applicants in detention[i], for example, by initiating multiple criminal proceedings against the applicants based on the same or similar factual and legal grounds, or by initiating chain detention orders.

In the case of Alexey Navalny, the Russian authorities had reopened the proceedings impugned by the Court, but reached the same conclusion and refused to quash the judgment. The government is now arguing that all individual measures have been implemented and that it cannot interfere in judicial activities or cancel the decision.

EIN support, civil society advocacy and positive developments

In October 2020, EIN set up an international alliance with five other international organisations – EHRAC, Amnesty International, International Partnership for Human Rights, Human Rights House Foundation and the Netherlands Helsinki Committee – with the intention of dialling up the pressure for the implementation of political persecution cases in Azerbaijan. The alliance issued joint public statement and submitted a joint Rule 9.2 submission, calling upon the Committee of Ministers to maintain the Mammadli group on the agenda of every upcoming CM DH meeting and to apply continuous and increased scrutiny for the implementation of both individual and general measures. In November 2020, EIN also organised a briefing to several delegations of the Committee of Ministers, during which applicant Rasul Jafarov and Prof. Philip Leach discussed the current problems of politicised prosecution and the need for sustained pressure by the Council of Europe.

Following these advocacy efforts, in its’ December 2020 decision in the Mammadli group, the Committee decided to “continue examining this group of cases at each of their human rights (DH) meetings, until all convictions are quashed”. Later, in March 2021, it issued a strong Interim Resolution, exhorting the Azerbaijan authorities to put an immediate end to the situation by ensuring “the quashing of the applicants’ convictions, their erasure from their criminal records and the elimination of all other consequences of the criminal charges brought against them, including by fully restoring their civil and political rights”.

Furthermore, since last year, EIN reached out and established contact with victims and legal representatives in political persecution cases, seeking to ensure that all victims of political persecution who have won cases in the last 3 years were represented and/or supported in the implementation process before the Committee of Ministers. EIN has provided support in engaging with the implementation process at the Committee of Ministers level to all main actors in these cases, by prompting, reviewing and advising on Rule 9 submissions.

In the Mammadli group, further submissions on behalf of individual applicants informed the Committee about ongoing developments, from the failure to pay full just satisfaction to all Azerbaijani applicants, to the refusal of the Supreme Court in Baku to respect the deadline for reviewing (and overturning) the remaining convictions. In the Mammadli group of cases, EIN provided support in making 15 Rule 9.1 submissions for the applicants in Rashad Hasanov and others, and in Ismayilova. Furthermore, EIN also provided advice on Rule 9.2 submissions made by the Election Monitoring and Democracy Studies Centre, and in several other Azerbaijani cases regarding shrinking civic spaces.

As regards the delays in paying just satisfaction, submissions made by Mr. Aliyev’s representatives pointed out that payments made to his account did not indicate in relation to which cases these payments had been made, as he was an applicant and lawyer in several judgments; his written inquiries to the government about this matter remained unanswered. Eventually, just satisfaction was paid to him, as well as to all other Azerbaijani applicants except two, which remain outstanding.

Another challenge occurred this year, when the Baku authorities argued that some of the convictions (of applicants in the Mammadli group of cases) had been expunged through the passage of time (6 years having passed since the pardon decree). With EIN support, concerned applicants showed in submissions that time-limit expungement of criminal records would not suffice to implement their cases, and that acquittal was still required. One significant positive development which followed as a result of these communications, was that the Committee of Ministers accepted this argument in its’ June 2021 decision, when it restated that, despite the expunging through the passage of time of the convictions of four applicants, “it is still of the utmost importance that all the applicants’ convictions are quashed in order to remove all the negative consequences of the abusive criminal proceedings”.

In the Navalnyye case, EIN has been providing updates on relevant developments to the main NGOs working on the case and Navalny’s legal representatives in Strasbourg, while also providing support in making a Rule 9 submission to the latter NGO in March 2021. Following submissions from the Centre de la Protection Internationale and the Human Rights Centre Memorial, in June 2021, the Committee of Ministers issued an Interim Resolution in the case, strongly urging the authorities “to release immediately Mr Aleksey Navalnyy”.

In the Kavala case, EIN has provided continuous updates on relevant developments to civil society organisations working on the case. Following ongoing pressure, in part through submissions made by Human Rights Watch, the Turkey Human Rights Litigation Support Project, the International Commission of Jurists and the applicant’s representative, the Committee of Ministers issued an Interim Resolution in December 2020, giving effect to the arguments that his detention under different charges was, in fact, based on the same facts and evidence and fell within the scope of the ECtHR judgment. It noted that ‘the information available to the Committee raises a strong presumption that his current detention is a continuation of the violations found by the Court’.

This approach was repeated in the Demirtaş case in March 2021, when the Committee of Ministers stated that the ongoing pre-trial detention of Selahattin Demirtaş, “on grounds pertaining to the same factual content, would entail a prolongation of the violation of the applicant’s rights as well as a breach of the obligation of the respondent State to abide by the Court’s judgment.” Since then, EIN has provided further support to the applicant’s legal representative in making a Rule 9 submission – while joint civil society submissions were also made in parallel. The latest decision on the case, in September 2021, went further, acknowledging that new prosecutions for similar statements made in the exercise of his function as member of Parliament, would be considered as part of that prolongation of the violation of the applicant’s rights.

This emerging approach shows that the Committee of Ministers is ready to recognize judicial tactics used for the circumvention of political persecution judgments, and to agree to maintain proceedings resulting from such tactics within the scope of the judgments.

Pressure for the implementation of political persecution cases was also maintained through briefings to Council of Europe delegates and European Union officials. In July 2021, EIN, in collaboration with the Netherlands Helsinki Committee, organized a briefing on cases involving victims of political persecution in Azerbaijan, Russia, and Turkey to officials from the Council of Europe Member States and the EU, with international experts, lawyers, and individual victims discussing the non-implementation of these judgments – and their wider impact. EIN also briefed members of the European Union’s External Action Service, in March 2021, prior to the EU-Azerbaijan human rights dialogue on the situation of political persecution cases in the country.

Furthermore, in view of the September 2021 meeting of the Committee of Ministers, further briefings were held on the Selahattin Demirtaş and Osman Kavala cases in September 2021, with experts from Human Rights Watch and the Turkey Human Rights Litigation Support Project providing insight about the different judicial tactics used by the Turkish authorities to circumvent the implementation of the judgments, calling for infringement proceedings.

Infringement proceedings on the horizon

The road to infringement proceedings is a very slow-moving process, which requires that many other ‘pre-infringement’ steps take place in advance. In their advocacy efforts, civil society organizations have been calling for infringement proceedings to be initiated in the Mammadli group again, as well as in the Kavala and Demirtaş cases.

In September 2021, the Committee of Ministers finally agreed to start giving effect to ongoing civil society requests on the Kavala case, and “expressed their resolve to serve formal notice on Turkey of their intention to commence these proceedings in accordance with Article 46 § 4 of the Convention at their 1419th meeting” in December 2021.

A positive ‘pre-infringement’ step was also taken in the Navalnyy case in September 2021, as the Committee of Ministers “invited the Secretary General to write a letter to the Minister of Foreign Affairs of the Russian Federation conveying deep concern about Mr Aleksey Navalnyy’s continuing detention”.

Progress was achieved in Demirtaş too, as the Committee of Ministers acknowledged that implementation also requires the removal of negative consequences of “criminal prosecutions in respect of statements made by him which would otherwise have been protected under Article 83 § 2 of the Constitution”. This was a positive development which signified that further criminal cases against the applicant - in respect of statements he made as a member of Parliament – would be considered to fall within the scope of the judgment.

Conclusion

While much more remains to be done to implement political persecution cases, the concerted advocacy efforts of international civil society have not only succeeded in preventing that these cases are forgotten, but have also ensured that they are not nullified by ongoing government efforts to either indefinitely postpone or circumvent implementation.

The progress made in Kavala and Demirtaş in September 2021 - which sets infringement on the horizon for Turkey, on one hand, and, on the other hand, also shows that the Committee of Ministers is not fooled by the various judicial tactics used by authorities - represents a significant step forward in the implementation process of these judgments, as well as a noteworthy evolution of the Committee of Ministers’ jurisprudence on political persecution cases, reflecting the work of civil society and ensuring that the ECtHR system can still be as effective it is meant to be.

[i] https://www.einnetwork.org/blog-five/2021/9/7/ein-civil-society-briefing-hungary-turkey-amp-russia