There have been questions about the ECHR, CoM, and CoE procedures that are engaged if a member state of the CoE does not follow a final judgment of the ECHR and does not positively respond to the supervisory role of the CoM in the execution of the ECHR judgment.
The relevance is that if and when the ECHR issues a final judgment against Italy, finding a violation of Article 6, in the case of Knox v. Italy, Italy, a founding member of the CoE, under its solemn treaty obligations and Italian law (Constitutional Court judgment no. 113 of 2011) will be required to allow review of a request for a revision trial for Knox's conviction of calunnia against Lumumba. The question arises: what happens if Italy does not follow through on its treaty obligations and its own law?
A case of this type - where a state does not follow through on its solemn treaty obligation and apparently refuses to comply with a final ECHR judgment - has just been announced by the ECHR. A case before the ECHR against the CoE member state, Azerbaijan, has been launched by the CoM alleging that Azerbaijan has violated Article 46.4 of the Convention. This article requires that the member states follow the final judgments of the ECHR. The procedures and potential judgment in this case, being relatively new, will set some precedents.
Here is the text of the ECHR press release:
"New infringement procedure used for first time over 2014 judgment against
Azerbaijan on opposition politician Mammadov
The European Court of Human Rights (ECHR) is to examine whether Azerbaijan has refused to abide by the ECHR’s judgment in the case of imprisoned opposition politician Ilgar Mammadov, the first use of a new infringement procedure.
The procedure was introduced into the European Convention on Human Rights in 2010 and allows the Committee of Ministers, which has the responsibility under the Convention for supervising the execution of the Court’s judgments, to refer a question to the ECHR about whether a country has refused to abide by a final judgment.
The Committee decided on 5 December 2017 to launch the proceedings against Azerbaijan owing to the authorities’ persistent refusal to ensure Mr Mammadov’s unconditional release following the ECHR’s 2014 finding of multiple violations of his rights. The ECHR received the formal request from the Committee on 11 December.
The procedure will be before the ECHR’s Grand Chamber.
Mr Mammadov, born in 1970, was arrested and placed in detention in 2013 following protests in the town of Ismayilli. He is currently serving a seven-year prison sentence following his conviction in 2014 of mass disorder and violence against public officials.
The ECHR found in 2014 that Mr Mammadov had been arrested and detained without any evidence to reasonably suspect him of having committed a criminal offence and concluding that the actual purpose of his detention had been to silence or punish him for criticising the Government. It found violations of Article 5 §§ 1 and 4 (right to liberty and security), Article 6 § 2 (right to the presumption of innocence), and Article 18 (limitation on use of restrictions on rights) of the European Convention.
The Committee of Ministers has launched the infringement proceedings under paragraph 4 of Article 46 (binding force and enforcement of judgments) of the Convention. The Article allows the Committee to refer a question to the ECHR as to whether a country has failed to abide by an ECHR judgment. The Committee first has to serve formal notice on the country concerned, which it did in this case in October, and then adopt a referral decision by a two-thirds majority.
The ECHR will consider the question as a Grand Chamber, its highest judicial formation. The Committee of Ministers and the parties concerned will be able to submit written comments in accordance with a deadline set by the President of the Grand Chamber. The Grand Chamber might also decide to hold a hearing.
If the Grand Chamber finds a violation because Azerbaijan has failed to abide by the ECHR’s judgment of 2014 in the case, it will refer the case back to the Committee of Ministers for consideration of the measures to be taken. A finding of no violation also leads to the case being referred back to the Committee of Ministers, which then closes its examination."
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Abbreviations: ECHR = European Court of Human Rights; CoM = Committee of Ministers, aka the Committee; CoE = Council of Europe; the Convention, aka the European Convention = the European Convention on Human Rights, aka most formally as The Convention for the Protection of Human Rights and Fundamental Freedoms.
