CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 29 mai 2019

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padding-left:5.03pt; vertical-align:top } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s13907D4E { margin-top:18pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid } .sF6A12959 { width:33%; height:1px; text-align:left }       GRAND CHAMBER                 PROCEEDINGS UNDER ARTICLE 46 § 4 IN THE CASE OF ILGAR MAMMADOV v. AZERBAIJAN   (Application no. 15172/13)                   JUDGMENT           STRASBOURG   29 May 2019       This judgment is final but it may be subject to editorial revision. In proceedings under Article 46 § 4 of the Convention in the case of Ilgar Mammadov v. Azerbaijan, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Angelika Nußberger, President,   Linos-Alexandre Sicilianos,   Robert Spano,   Ganna Yudkivska,   Helena Jäderblom,   Nebojša Vučinić,   Paulo Pinto de Albuquerque,   Erik Møse,   Krzysztof Wojtyczek,   Valeriu Griţco,   Dmitry Dedov,   Iulia Antoanella Motoc,   Síofra O’Leary,   Mārtiņš Mits,   Stéphanie Mourou-Vikström,   Alena Poláčková,   Lәtif Hüseynov, judges, and Roderick Liddell, Registrar, Having deliberated in private on 20 June 2018, 24 October 2018, 30   January 2019 and 1 April 2019, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1 .     The case originated in the question referred to the Court in accordance with Article 46 § 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the Committee of Ministers (“the Committee”) on 5 December 2017, whether the Republic of Azerbaijan has failed to fulfil its obligation under Article 46 § 1 of the Convention to abide by the Court’s judgment in Ilgar Mammadov v.   Azerbaijan (no.   15172/13, 22 May 2014 (“the first Mammadov judgment”)). 2 .     In the first Mammadov judgment, the Court found violations of Articles   5 §   1   (c), 5 § 4, 6 § 2, as well as Article 18 taken in conjunction with Article   5, in relation to criminal charges brought against Mr   Mammadov in February   2013 and his subsequent pre-trial detention. 3 .     That judgment became final on 13 October 2014, at which point it was transmitted to the Committee of Ministers under Article 46 § 2 of the Convention to supervise its execution. The Committee of Ministers repeatedly examined the case at its Human Rights meetings held between December 2014 to October 2017 (see paragraphs 45-70 below). At its 1302 nd   Human Rights meeting of 5-7 December 2017, exercising its powers under Article 46 § 4 of the Convention and Rule 11 of its Rules for the supervision of the execution of judgments, the Committee adopted an Interim Resolution referring its question under Article 46 § 4 to the Court (CM/ResDH(2017)429, see Annex). 4.     On 11 December 2017 the referral was filed with the Registrar by the Committee of Ministers in accordance with Rule 100 (former Rule 95) of the Rules of Court (“the Rules of Court”) and subsequently allocated to the Grand Chamber of the Court, in accordance with Rule 101 (former Rule 96) of the Rules of Court. 5.     The composition of the Grand Chamber was determined in accordance with Article 31 (b) of the Convention and Rule 24 of the Rules of Court. 6.     On 31 January 2018 the Government raised an objection under Rule   28 § 2 (d) of the Rules of Court to a statement made by the President of the Court on the occasion of the official opening of the judicial year on 26   January 2018. Considering the challenge to be legally unfounded the President nonetheless took the view that the interests of the Court were best served by his withdrawing from the composition of the Grand Chamber. In accordance with Rule 10 he was replaced as President of the Grand Chamber by Judge Angelika Nußberger, the Vice-President of the Court taking precedence (Rule 5 § 2). The composition of the Grand Chamber was revised accordingly. Based on the statement made by the President of the Court on 26 January 2018 the Government also objected to the impartiality of the Court as a whole under Rule 9 § 1. The President of the Grand Chamber acting pursuant to Rule 28 § 4 referred the objection to the newly composed Grand Chamber which examined it and decided to reject it as wholly unfounded. 7.     The Committee of Ministers, the Government and Mr Mammadov each submitted written comments (Rules 102 and 103 § 1 (former Rules 97 and 98 § 1)). 8.     No hearing was requested. Having deliberated in private on 16 April 2018 the Grand Chamber decided to dispense with a hearing in accordance with Rule 103 § 2 (former Rule 98 § 2). The Committee of Ministers, the Government and Mr   Mammadov each submitted further written comments in response to the first round of written comments. THE FACTS I .     THE CIRCUMSTANCES OF THE CASE A.     The background facts 1.     Ilgar Mammadov and the events leading up to his pre-trial detention 9 .     Mr Mammadov is an Azerbaijani national who has been involved in various political organisations and local and international non-governmental organisations for a number of years. In 2008 he co-founded the Republican Alternative Movement (“REAL”) and in 2012 was elected its chairman. For several years he has also been the Director of the Baku School of Political Studies, which is part of a network of schools of political studies affiliated with the Council of Europe (see the first Mammadov judgment, § 6). 10.     Mr Mammadov maintained a personal internet blog on which he commented on various political issues. In particular, in November 2012, after the enactment of a new law by the National Assembly introducing heavy sanctions for unauthorised public gatherings, Mr Mammadov posted a comment on his blog which he claimed was meant to insult members of the National Assembly. Without naming any names, he went on to state, inter alia, that the National Assembly was composed of “fraudulent people” and compared the entire legislative body to a zoo. Those statements were quoted in the media and elicited a number of seemingly irate responses from various National Assembly members. The responses, also published in the media, ranged in content from retaliatory ad hominem insults to calls for punishment and threats of suing him in court. According to Mr Mammadov, the parliamentarians’ “lawsuit plans were ... temporarily dropped” after the calls for reprisals against him were condemned by one of the Vice ‑ Presidents of the European Commission, who was visiting the country at the time (ibid ., § 7). 11.     At the beginning of January 2013 REAL announced that it would consider nominating its own candidate for the upcoming presidential election of November 2013. Mr Mammadov himself announced that he was considering standing as a candidate in the election. According to him, his prospective presidential candidacy was widely discussed in Azerbaijan at that time (ibid ., § 8). 12.     On 23 January 2013 rioting broke out in the town of Ismayilli, located to the northwest of Baku. According to media reports quoting local residents, the rioting was sparked by an incident involving V.A., the son of the then Minister of Labour and Social Protection and nephew of the then Head of the Ismayilli District Executive Authority (“IDEA”). It was claimed that after being involved in a car accident, V.A. had insulted and physically assaulted passengers of the other car, who were local residents. On hearing of the incident, hundreds (perhaps thousands) of local residents took to the streets and destroyed a number of commercial establishments (including the Chirag Hotel) and other property in Ismayilli thought to be owned by V.A.’s family (ibid., § 9). 13.     On 24 January 2013 Mr Mammadov travelled to Ismayilli to get a first ‑ hand account of the events. On 25 January 2013 he described his impressions from the trip on his blog. On 28 January 2013 Mr Mammadov posted more information on his blog concerning the events, citing the official websites of the Ministry of Culture and Tourism and the Ministry of Taxes and publishing screenshots of those sites. In particular, he noted that, according to those sources and to information posted on V.A.’s Facebook account, the Chirag Hotel was actually owned by V.A. This directly contradicted an earlier denial by the Head of IDEA. The information cited by Mr Mammadov was removed from the aforementioned Government websites and V.A.’s Facebook page within one hour of Mr   Mammadov publishing his blog entry. However, the blog entry itself was extensively quoted in the media (ibid., §§ 12-13). 14.     On 29 January 2013 Mr Mammadov received a phone call from the Serious Crimes Department of the Prosecutor General’s Office and was orally invited to the department for questioning as a witness. Over the course of the following days he was repeatedly questioned (see ibid., §§   16 ‑ 28). 15.     On 4 February 2013 Mr Mammadov was charged with criminal offences under Articles 233 (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 (ibid., § 27). 16 .     On the same day, 4 February 2013, Mr Mammadov was remanded in custody for a period of two months (until 4 April 2013) by a decision of the Nasimi District Court (ibid., § 32). 17.     On 30 April 2013 the head of the investigation team decided to charge Mr Mammadov under Articles 220.1 (mass disorder) and 315.2 (resistance to or violence against public officials, posing a threat to their life or health) of the Criminal Code, thereby replacing the original charges (ibid., §   49). 18 .     The original two-month period of Mr Mammadov’s detention was subsequently extended by the decisions of the Nasimi District Court of 14   March 2013 (extended until 4 June 2013), 15 May 2013 (until 4   September 2013) and 14 August 2013 (until 4 November 2013) (ibid., §§   44, 51 and 53). His appeals against the original detention order of 4   February 2013 (see paragraph 16 above) and the extension orders were rejected (ibid., §§ 34-39, 45-46 and 53). Mr Mammadov also made unsuccessful requests to have his detention replaced by house arrest and to be released on bail (ibid., §§ 40-42 and 47-48). 2.     The criminal trial 19 .     Mr Mammadov’s trial, involving eighteen defendants in total, commenced in November 2013. On 4 November 2013 the Shaki Court for Serious Crimes held a preliminary hearing of the case (see Ilgar Mammadov v.   Azerbaijan (no. 2) , no. 919/15, §§ 21 et seq., 16 November 2017) (“the second Mammadov judgment”). The trial, during which he remained detained, spanned approximately thirty hearings (ibid., § 26). 20 .     On 17 March 2014 the Shaki Court for Serious Crimes delivered its judgment, convicting him as charged and sentencing him to seven years’ imprisonment (ibid., § 94). 21 .     On 24 September 2014, following an appeal by Mr Mammadov, the Shaki Court of Appeal upheld his conviction and sentence (ibid., § 121). 22 .     In November 2014 Mr Mammadov lodged a cassation appeal with the Supreme Court. At the first hearing held on 13 January 2015 the Supreme Court decided, in the absence of any objections, to postpone any further hearing of the case for an indefinite period because it needed more time for examination of the case file (ibid., §§ 123-124). 23 .     The hearing was resumed on 13 October 2015. By a decision on that date, the Supreme Court quashed the Shaki Court of Appeal’s judgment of 24   September 2014, having found that the lower courts’ rejection of the defence’s requests for the examination of additional witnesses and other evidence had been insufficiently reasoned and were in breach of the domestic procedural rules and the requirements of Article 6 of the Convention. The case was remitted for a new examination by the appellate court (ibid., §§ 124-125). 24 .     On 29 April 2016, having re-examined the case material and having examined additional evidence, the Shaki Court of Appeal delivered a judgment upholding Mr Mammadov’s conviction and sentence (ibid., §§   127-129). 25 .     The Court of Appeal took account of the Court’s finding a violation of Article 5 (1) (c) in the first Mammadov judgment but concluded that it was unfounded. Having heard a number of witnesses it instead concluded that there had been sufficient evidence to charge and convict Mr   Mammadov for the crimes with which he had been charged. It made no reference to the violations of other Articles of the Convention in the first Mammadov judgment. It referred to Mr Mammadov’s “disobedience ‑ provoking” facebook and blog posts and found: “Case circumstances undoubtedly prove that Ilgar Mammadov and Tofig Yagublu travelled to Ismailli town on 24 January 2013 and organised and actively participated in mass riots resulting in an attack on the local government office at about 5 p.m. committed by local residents ... The court collegium notes that Ilgar Mammadov and Tofig Yagublu arrived from Baku and managed to convert spontaneous rallies into organised mass riots within two hours: though in normal circumstances this could look odd the situation was strained, local residents condemned the head of Executive Power N.Alekperov and were excited and as Ilgar Mammadov noted “the situation was flammable”. Ilgar   Mammadov and Tofig Yagublu took advantage of these factors and using anti ‑ government slogans attracted the crowd’s attention, made emotions high and committed criminal acts described above.” 26 .     It continued: “The court collegium concluded that in compliance with provisions of the Articles   143-146 of the Code of Criminal Procedure, sufficient evidence was collected and assessed comprehensively and objectively at the court of first instance. Articles 220.1 and 315.2 of the Criminal Code of the Republic of Azerbaijan were correctly applied to the indictees Yagublu Tofig Rashid and Mammadov Ilgar Eldar.” 27 .     Mr Mammadov made a second appeal in cassation to the Supreme Court on 21 June 2016. By a final decision of 18 November 2016 the Supreme Court upheld the Shaki Court of Appeal’s judgment of 29 April 2016 (ibid., § 149). Mr Mammadov remained in detention from that point until 13 August 2018 (see paragraph 32 below). 28 .     After the second Mammadov judgment of the Court (see paragraphs   74-80 below) became final on 5 March 2018, Mr Mammadov again appealed to the Supreme Court of Azerbaijan to re-open his case. On 29   June 2018 the Plenum of the Supreme Court accepted his appeal, re ‑ opened his case and remitted it to the Shaki Court of Appeal. 29.     On 13 August 2018, the Shaki Court of Appeal reviewed the judgment of the Shaki Court for Serious Crimes which initially convicted Mr   Mammadov on 17 March 2014. Both Mr Mammadov and the Prosecution Service were heard during the appeal. Neither adduced new information. 30.     The Court of Appeal re-examined the evidence and recalled that in accordance with this Court’s well established case-law the domestic courts are in a better position to evaluate the evidence. Reviewing the evidence given by police officers it considered that there was “definitely no legal basis to cast doubt on the reliability of the[ir] testimonies”. It then reviewed the other original witness statements and evidence. It affirmed the conclusion in its decision of 29 April 2016 that “sufficient evidence was collected and assessed comprehensively and objectively before the court of first instance”. It concluded: “Thus, as a result of reviewing the appeals, the court finds that the judgment of the Shaki Serious Crimes Court dated 17 March 2014 by which the defendant Ilgar   Mammadov was found to be guilty under Articles 220.1 and 315.2 of the Criminal Code and was sentenced to imprisonment for six years under Article 220.1 of the Criminal Code and for four years under Article 315.2 of the Criminal Code and overall for seven years by partial combination of these terms under Article 66.3 of the Criminal Code, was lawful and grounded.” 31 .     As regards sentencing the Court of Appeal stated as follows: “The court also notes that, during the conditional sentence, the convict is not released from criminal responsibility; when a sentence imposed by the judgment is not enforced, it is served in the special form defined by the law. The court, having regard to the personality of the convict Ilgar Mammadov, the existence of one minor child in his care, the absence of a prior criminal record, the fact that he has served the most part of the sentence and that he has not committed any illegal action during the period of imprisonment and the absence of any complaint or claim directly filed against him in connection with the crime committed, considers that his rehabilitation is possible without his serving the remaining part of his sentence and without his isolation from the public. Accordingly, the court considers that the application of Article 70 of the Criminal Code of the Republic of Azerbaijan and conditional enforcement of the remaining part of sentence, along with the determination of a probation period, corresponds to the law and is appropriate from the perspective of attaining the aim of the punishment.” 32 .     The Court of Appeal decided that the unserved term of one year five months and 21 days should be deducted from his final sentence. Applying Article 70 of the Criminal Code of the Republic of Azerbaijan it granted him a two year probation period to expire on 13 August 2020. Mr   Mammadov was released from prison the day of the Court of Appeal’s judgment – 13 August 2018. The Court of Appeal indicated: “The supervision of the convicted person’s behaviour shall be assigned to the Enforcement and Probation Department of his place of residence. In accordance with Article 70.5 of the Criminal Code, during the probation period Ilgar Mammadov shall not change his permanent place of residence without informing the supervising authority, shall present himself when called upon by that body, shall not leave the country and shall prove his correction by his behaviour.” B.     The first Mammadov judgment 33 .     In the first Mammadov judgment of 22 May 2014, which became final on 13 October 2014, the Court found violations of Articles   5 §   1(c), 5   § 4, 6 § 2, as well as Article 18 taken in conjunction with Article   5, in relation to criminal charges brought against Mr Mammadov in February   2013 for denouncing on his blog the authorities’ version of the Ismayilli riots of 23 January 2013 and his subsequent pre-trial detention (see paragraphs 9 to 18 above). It awarded Mr Mammadov the sum of EUR   20,000 in respect of non-pecuniary damage and EUR 2,000 in respect of costs and expenses. 34 .     The Court found that the arrest and detention of Mr Mammadov took place in the absence of any reasonable suspicion that he had committed an offence and therefore constituted a violation of Article 5 § 1(c) (see the first Mammadov judgment §§ 99-101) [1] : “99.     For the above reasons, the Court considers that no specific facts or information giving rise to a suspicion justifying the applicant’s arrest were mentioned or produced during the pre-trial proceedings, and that R.N.’s and I.M.’s statements, which were only subsequently produced before the Court, have not been shown to constitute such facts or information. Furthermore, it has not been shown that, following the applicant’s arrest and throughout the entire period of his continued detention falling within the scope of this case, the authorities obtained any new information or evidence of such nature. 100.     The Court is mindful of the fact that the applicant’s case has been taken to trial (the applicant’s continued detention during the trial proceedings and the trial hearings themselves have not yet been the subject of a complaint before the Court). That, however, does not affect the Court’s findings in connection with the present complaint, in which it is called upon to examine whether the deprivation of the applicant’s liberty during the pre ‑ trial period was justified on the basis of information or facts available at the relevant time. In this respect, having regard to the above analysis, the Court finds that the material put before it does not meet the minimum standard set by Article 5 § 1 (c) of the Convention for the reasonableness of a suspicion required for an individual’s arrest and continued detention. Accordingly, it has not been demonstrated in a satisfactory manner that, during the period under the Court’s consideration in the present case, the applicant was deprived of his liberty on a “reasonable suspicion” of having committed a criminal offence. 101.     There has accordingly been a violation of Article 5 § 1 (c) of the Convention.” 35.     It also found that the domestic courts, both at first instance and on appeal, had limited themselves in all their decisions to an automatic endorsement of the prosecution’s requests without having conducted a genuine review of the lawfulness of the detention, resulting in a violation of Article 5 § 4. 36 .     Recalling that the charges brought against Mr Mammadov were not based on reasonable suspicion, the Court further found that the actual purpose of the impugned measures was to silence or punish Mr Mammadov for having criticised the government and for having attempted to disseminate what he believed to be true information which the government was trying to hide (ibid ., §§ 141-143, cited at paragraph 187 below). 37.     Accordingly, the Court found a violation of Article 18 taken in conjunction with Article 5 (ibid., § 144). 38.     The Court also found a violation of the Mr Mammadov’s right to the presumption of innocence under Article 6 § 2 on account of statements made to the press by the Prosecutor General and the Minister of the Interior encouraging the public to believe that Mr Mammadov was guilty (ibid.,   §§   127-128). C.     The Committee of Ministers’ supervision of the execution of the first Mammadov judgment 1.     Proceedings prior to the Committee of Ministers’ Human Rights meetings 39.     Once the first Mammadov judgment became final on 13 October 2014 it was transmitted to the Committee of Ministers, in order for the Committee to supervise its execution in accordance with Article 46 § 2 (see paragraph 3 above). 40 .     On 26 November 2014 the Government took its first procedural step in the execution process (see paragraph 102), which was to submit an Action Plan to the Committee (see DH-DD(2014)1450). 41.     In the Action Plan, the Government informed the Committee about the state of the domestic criminal proceedings, in particular that following the facts examined in the first Mammadov judgment, Mr Mammadov had been convicted by a judgment of the Shaki Court for Serious Crimes of 17   March 2014, which had been upheld by the Shaki Court of Appeal’s judgment of 24 September 2014. A cassation appeal brought by him against the appellate judgment was pending (see paragraphs 19 to 22). 42 .     The Government then included quotations from a decision of the Plenum of the Supreme Court of 3 November 2009 “on the application of the legislation by the courts during the examination of requests for the application of the preventive measure of remand in custody in respect of an accused”. 43 .     Setting out the measures they had “planned and taken in order to give effect to the Court’s judgment”, the Government noted that the first Mammadov judgment had been submitted to the Supreme Court “to be taken into account during the examination of the applicant’s cassation appeal”. 44 .     The Government Agent’s Office also planned to organise, together with the Supreme Court, a series of training sessions for the judges of first ‑ instance and appellate courts as regards the implementation of the Plenum’s decision of 3 November 2009. Lastly, according to the Action Plan it was also envisaged that training would be held for prosecutors as regards the principle of presumption of innocence and the requirement of submission of the prosecution’s case files for review by the courts for the purpose of verifying the existence of a “reasonable suspicion”. It was noted that the detailed time-table of the above measures would be submitted to the Committee in due course, following necessary arrangements. 2.     Proceedings from the Committee of Ministers’ Human Rights meeting in December 2014 to its Human Rights meeting in December 2016 (a)     Overview 45 .     Following the Government’s submission of the Action Plan (see paragraphs 40 to 44 above) the Committee of Ministers examined the case at the first of its quarterly Human Rights meetings to be held after the judgment had become final (its 1214 th Human Rights meeting (2 ‑ 4   December 2014) see also paragraph 100 below). It was advised by its Secretariat as follows: “The violation of Article 18, taken in conjunction with Article 5 casts doubt on the merit of the criminal proceedings instituted against the applicant. ... It would therefore be useful if the authorities informed the Committee of the measures which the authorities and bodies concerned (notably, the Prosecutor’s Office and the Supreme Court) intend to take in order to take into account the findings of the Court and to erase, as far as possible, the consequences of this violation for the applicant in the context of the criminal procedure which appears to be pending before the Supreme Court. In the light of the serious findings of the Court in this case, release of the applicant would constitute the first important measure to be envisaged as a matter of priority and without delay, in accordance with the domestic procedures.” At that meeting the Committee of Ministers classified the case in the “enhanced procedure” on the basis that it required “urgent individual measures” and disclosed a “complex problem” (see paragraph 101 below). Having considered the judgment, the Action Plan provided and the advice of its Secretariat, the Committee adopted the following decision: “The Deputies 1.     as regards individual measures and considering the circumstances of the case, called upon the authorities, to ensure the applicant’s release without delay; 2.     in view of the preoccupying reports about the applicant’s health condition, called upon the authorities to urgently take any necessary action and provide rapidly information in this respect; 3.     invited the authorities to indicate the further measures taken or planned in order to give effect to the Court’s judgment, and to erase rapidly, as far as possible, the remaining consequences for the applicant of the serious violations established; 4.     noted, in this context, that the criminal proceedings, the initiation of which was criticised by the European Court, are still pending before the Supreme Court; 5.     recalled the general problem of the arbitrary application of criminal legislation to restrict freedom of expression and conveyed their particular concern about the finding of a violation of Article 18 taken in conjunction with Article 5 of the Convention; 6.     therefore called upon the Azerbaijani authorities to furnish, without delay, concrete and comprehensive information on the measures taken and/or planned to avoid that criminal proceedings are instituted without a legitimate basis and to ensure effective judicial review of such attempts by the Prosecutor’s office; 7.     expressed concern about the repetitive nature of the breach of the principle of presumption of innocence by the Prosecutor General’s Office and members of the government, despite several judgments of the Court which, since 2010, have indicated the precise requirements of the Convention in this regard, and insisted on the necessity of rapid and decisive action in order to prevent similar violations in the future; ...” 46.     During this period, the Committee of Ministers was informed in the context of the individual measures that Mr Mammadov had initiated a cassation appeal against the decision of the Shaki Court of Appeal of 24   September 2014 (see paragraphs 21-22 above) to the Supreme Court. On 13   January 2015 the Supreme Court postponed the appeal sine die and at its Human Rights meeting of 12 March 2015, the Committee adopted an interim resolution calling for Mr Mammadov’s release “without delay” (see CM/ResDH(2015)43). The Supreme Court ultimately gave its judgment on 13   October 2015 quashing the judgment of the Shaki Court of Appeal (see paragraph 23 above). Examining that judgment, the Committee concluded that the Supreme Court had not taken into account the findings of the first Mammadov judgment. At its examination of the case at its 1243 rd   Human Rights meeting (from 8-9 December 2015), the Committee: “3.     insisted anew on the necessity for the authorities to ensure, without further delay, the applicant’s release ... ... 4.     noted that the Supreme Court of Azerbaijan ordered only a partial cassation, which does not appear to take into account the findings of the European Court in the applicant’s case and, in particular, those [findings] relating to the violation of Article   18 in conjunction with Article 5; ...” 47.     The Committee of Ministers continued to follow the events concerning Mr Mammadov’s conviction and appeal (see paragraphs 19-27 above). It noted that after the decision of the Supreme Court, the Shaki   Court of Appeal on 29 April 2016 re-examined Mr Mammadov’s case and confirmed his conviction (see paragraph 24 above). On 21 June 2016, he again appealed the decision of the Shaki Court of Appeal to the Supreme Court (see paragraph 27 above). 48 .     Until June 2016, the Committee of Ministers examined the case at each of its quarterly Human Rights meetings (see paragraph 100 below). From June 2016 it decided to examine Mr Mammadov’s situation at its ordinary, monthly, meetings whilst also continuing to examine it at every Human Rights meeting of the Committee. [2] (b)     Information submitted to the Committee of Ministers 49.     From December 2014 to December 2016 the Committee of Ministers received nineteen submissions of information from Mr   Mammadov about the individual measures in the case, submitted under Rule 9 of its Rules (see paragraphs 89 and 93 below) and at a frequency of around one submission every fortnight. He complained about his continued detention stating that the judgment was not executed as he had not been released; the domestic courts had failed to take into account this Court’s findings in the re-opened proceedings; and the domestic courts were taking too long to consider his case. Mr Mammadov also submitted that he had been assaulted and mistreated in detention and that members of his family had been threatened. 50.     In addition to their initial Action Plan submitted on 26 November 2014 (see paragraph 40 above) the Government made three submissions to the Committee of Ministers during this period under Rule 8 of the Rules (see paragraph 92 below) and responding to Mr Mammadov’s submissions. On 15 December 2014 (see DH-DD(2014)1521) and 5 August 2015 (see DH-DD(2015)780) they provided information indicating that Mr   Mammadov’s health was satisfactory. On 7 March 2016 (see DH ‑ DD(2016)261) they indicated that national law obliged his appearance at the hearings in his case and as such he was being transferred to Shaki   Court of Appeal. 51.     Under Rule 9 of the Rules (see paragraph 93 below), the NGO Freedom Now made one submission to the Committee of Ministers on 26   November 2014 (see DH-DD(2015)844). It stated that Azerbaijan had failed to execute the Court’s judgment by failing to release Mr Mammadov or stop domestic judicial proceedings against him and by failing to provide any workable plan to curtail political prosecutions. It urged the Committee to initiate proceedings under Article 46 § 4 of the Convention. 52.     Two NGOs, the Helsinki Foundation for Human Rights and the Public Association for Assistance to a Free Economy, made a joint submission of information on 6 March 2015 (see DH-DD(2015)264). They criticised the content of the authorities’ Action Plan from 2014 (see paragraph 40 above) and, with reference to other cases against Azerbaijan pending before the Court, underlined a pattern of increased application of criminal legislation to persecute those exercising their freedom of expression. (c)     Decisions and Interim Resolutions adopted by the Committee of Ministers during this period 53 .     In its examination of the case at the nine meetings up to and including December 2016, the Committee of Ministers adopted three interim resolutions and six decisions (one at every Human Rights meeting where the case was examined and an interim resolution was not adopted). 54.     All those decisions and resolutions expressed the Committee of Ministers’ insistence that Mr Mammadov should be released immediately and that information should be provided on the general measures envisaged to execute the judgment. The language used by the Committee reflected its growing concerns about the fact that Mr Mammadov remained in detention, notwithstanding its repeated calls for his release. 55.     The Committee of Ministers’ addressed its concerns first to the authorities of Azerbaijan in general, then to the highest authorities in Azerbaijan. From the 1236 th Human Rights meeting onwards (24 September 2015) it called on the Council of Europe as a whole and member states acting individually to use all means available to ensure Azerbaijan’s compliance with its obligations under the judgment. 56.     The Committee also indicated that it would use all the means at the disposal of the Organisation, including under Article 46 § 4 of the Convention (see paragraph 58 below). 57 .     The last interim resolution adopted in that period was at the Committee of Ministers’ 1259 th Human Rights meeting (7-9 June 2016 (see CM/Res/DH(2016)144). It stated: “The Committee of Ministers, under the terms of Article 46 § 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provide that the Committee supervises the execution of final judgments of the European Court of Human Rights (“the Court”) below; Deeply deploring that, despite the Court’s findings on the fundamental flaws of the criminal proceedings engaged against him and notwithstanding the Committee’s repeated calls, the applicant still has not been released; Recalling that it is intolerable that, in a State subject to the rule of law, a person should continue to be deprived of his liberty on the basis of proceedings engaged, in breach of the Convention, with a view to punishing him for having criticised the government. Recalling that the obligation to abide by the judgments of the Court is unconditional; INSISTS that the highest competent authorities of the respondent State take all necessary measures to ensure without further delay Ilgar Mammadov’s release; DECLARES the Committee’s resolve to ensure, with all means available to the Organisation, Azerbaijan’s compliance with its obligations under this judgment; DECIDES in view thereof to examine the applicant’s situation at each regular and Human Rights meeting of the Committee until such time as he is released.” 58 .     The final decision adopted during this period at its 1273 rd Human Rights meeting (6-8 December 2016) stated: “The Deputies 1.     noting with the utmost concern that, more than two years after the final judgment of the European Court and notwithstanding the repeated calls of the Committee of Ministers and the Secretary General on the respondent State to release the applicant, he remains detained; 2.     recalling the previous decisions and interim resolutions adopted by the Committee of Ministers, particularly the repeated calls of the Committee for the immediate release of the applicant; 3.     deeply deplored 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; 4.     firmly reiterated that it is not acceptable that, in a state subject to the rule of law, an individual remains deprived of his liberty on the basis of proceedings carried out in violation of the Convention in order to punish him for having criticised the government and that, in consequence, the continuing arbitrary detention of Ilgar   Mammadov constitutes a flagrant breach of the obligations under Article 46, paragraph 1, of the Convention; 5.     affirmed their determination to ensure the implementation of the judgment by actively considering using all the means at the disposal of the Organisation, including under Article 46, paragraph 4 of the European Convention on Human Rights; 6.     finally expressed their deep concern about the absence of any information from the authorities concerning the general measures taken or envisaged to prevent violations of the rule of law through abuse of power of the kind established in the European Court’s judgment; in this respect, encouraged Azerbaijan to engage in meaningful dialogue with the Committee of Ministers.” 3.     Proceedings in 2017 59.     Exercising his powers under Article 52 of the Convention the Secretary General of the Council of Europe appointed a representative to visit Baku. On 11 January 2017, the representative attended meetings in the Supreme Court, the Prosecutor’s Office, the Ministry of Justice, and the Administration of the President of Azerbaijan when issues concerning the execution of the judgment were discussed. 60 .     On 10 February 2017 the President of Azerbaijan signed an Executive Order. According to the analysis of the Secretariat at the 1280 th   Human Rights meeting ((7-10 March 2017) CM/Notes/1280/H46-2) the Order envisaged the adoption of a number of measures. Amongst others, it foresaw measures regarding: “... the prevention of arbitrary arrests; a liberalisation of criminal policy; an obligation to “strictly comply with the principles of criminal law and general grounds of sentencing”; the elimination of “non-procedural attitudes during criminal prosecution and execution of sentences”; or the implementation of stricter measures to fight notably abuse of power. The Executive Order also foresaw the elaboration within two months of draft laws notably on: the decriminalisation of certain crimes, in particular in the economic field; a greater recourse to alternatives to imprisonment and “a wider application of substitution of remainder of imprisonment by lighter punishment, parole and suspended sentence”. It has also been recommended to the domestic courts to examine the existence of reasonable suspicions of individuals having committed an offence and grounds for arrest, when deciding on measure of restraint, and arguments in favour of alternative measures. In addition, it has also been recommended to the Supreme Court to ensure continued analysis of case law concerning arrest and imposition of imprisonment, and development of fair case law in this field.” 61.     The Committee of Ministers adopted the following decision at that 1280 th meeting: “1.     recalling their previous decisions and interim resolutions calling for the immediate release of Ilgar   Mammadov and in particular their decision of December   2016 affirming their determination to ensure the implementation of the judgment by actively considering using all the means at the disposal of the Organisation; 2.     reiterating their utmost concern that he is still detained; 3.     in this respect took note with interest of the Azerbaijani authorities’ commitment to examine all avenues discussed during the mission of the representative of the Secretary General to execute the Ilgar   Mammadov judgment, as well as of the recent Presidential Executive Order which foresees promising measures for the execution of this judgment; 4.     invited the authorities to keep the Committee informed of the concrete measures adopted on the basis of this Executive Order and in particular of those enabling the release of Ilgar Mammadov without further delay; 5.     noted the indication given during the meeting by the Azerbaijani authorities that the just satisfaction has been paid to Ilgar Mammadov in December 2015 ...; invited them to confirm this information in writing; ...” 62 .     At its 1288 th Human Rights meeting (6-7 June 2017), the Committee of Ministers’ adopted a decision which recalled the terms of the decision from its previous meeting, called for Mr Mammadov’s “unconditional” release and encouraged urgent progress of the Executive Order. 63.     The Committee of Ministers examined the case at its 1293 rd   (ordinary) meeting (13 September 2017). At that meeting the Secretary General of the Council of Europe called on the Committee of Ministers, should Mr   Mammadov’s situation remain unchanged, to trigger proceedings under Article 46 § 4 of the Convention. 64.     The Committee of Ministers then examined the case at its 1294 th   Human Rights meeting (19-21 September 2017). It noted information provided by the Azerbaijan authorities on 6 September 2017 (see DH ‑ DD(2017)951) that the draft legislative amendments to the Criminal Code to implement the Executive Order had been submitted to parliament; that the authorities considered there was no particular urgency to adopt those reforms but that the amendments could be adopted in the autumn session. In response to questions asked by the Deputies about whether those amendments would assist Mr Mammadov, the Government indicated their position that the Court’s findings of a violation in the first Mammadov judgment concerned the pre-trial phase of proceedings and a second application was pending concerning the criminal proceedings. They informed the Committee that the amendments would help to prevent similar violations. 65.     Recalling the statement of the Secretary General, the Committee of Ministers adopted a decision at that meeting which followed the terms of the decisions adopted in March and June 2017 (see paragraphs 60 to 62 above). 66 .     At its ordinary meeting on 25 October 2017, in light of the lack of further developments, the Committee of Ministers adopted a fourth interim resolution putting Azerbaijan on formal notice that it had failed to fulfil its obligations (see CM/ResDH(2017)379). 67 .     Finally, at its 1302 nd Human Rights meeting (5-7 December 2017) it adopted its fifth interim resolution (CM/ResDH(2017)429) which triggered proceedings under Article 46 § 4: “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 g