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).
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.”
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.
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).
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 1214th 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 1243rd 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 1236th 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’ 1259th 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 1273rd 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.”
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 1280th 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 1280th 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; 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 1288th 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 1293rd (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 1294th 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 1302nd 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 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 Article 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; ...”
68.  In accordance with the Committee of Ministers’ Rules (see paragraph 94 below) the views of the Republic of Azerbaijan were included in an Appendix to the resolution (see Annex to the present judgment). There, the Government set out the measures adopted to execute the judgment. In respect of individual measures they confirmed payment of the just satisfaction awarded by the Court. They also stated that on 29 April 2016 the Shaki Court of Appeal finalised its examination of Mr Mammadov’s appeal and in doing so it carefully addressed the Court’s conclusions in the first Mammadov judgment and remedied the deficiencies found in the proceedings leading to Mr Mammadov’s conviction.
69.  In respect of general measures they referred to the Executive Order presented to the Committee of Ministers during the supervision process in 2017 (see paragraph 60 above). They also confirmed the adoption on 20 October 2017 by the Milli Medjlis of the Law on Amendments to the Criminal Code decriminalising certain acts and creating the possibility for those convicted for serious crimes to apply for conditional release after having served two-thirds of a criminal sentence.
71.  On 14 August 2018 the Government of Azerbaijan wrote to the Committee of Ministers informing them of the decision of the Shaki Court of Appeal and Mr Mammadov’s release on 13 August 2018 (see paragraphs 28-32 above). The Committee of Ministers replied to the Government of Azerbaijan on 28 August 2018 asking them a number of questions on the factual and procedural developments in Mr Mammadov’s case. The Government provided a memorandum in reply which was also commented on by Mr Mammadov in a separate submission (see documents DH‑DD(2018)816 and DH-DD(2018)891).
72.  The Committee of Ministers examined the first and second Mammadov judgments together in light of those written exchanges at its 1324th (Human Rights) meeting of 18-20 September 2018, and then the first Mammadov judgment at its 1325th ordinary meeting on 26 September 2018. It did not adopt any decisions relevant to the cases at those meetings.
73.  According to information provided by the Government of Azerbaijan, on 28 March 2019 the Supreme Court gave its decision in a cassation appeal by Mr Mammadov against the decision of the Court of Appeal. The Supreme Court upheld the appeal in part and amended the Shaki Court of Appeal’s judgment of 13 August 2018. It reduced the consolidated sentences imposed on Mr Mammadov to five years, six months and nine days imprisonment. In light of the time Mr Mammadov had already spent in prison, the Supreme Court considered his sentence to have been fully served. The Supreme Court also set aside the conditional sentence of two years imposed by the Shaki Court of Appeal, thus removing its associated restrictions on Mr Mammadov (see paragraphs 31-32 above) including the obligation on him to report to the Enforcement and Probation Department, and restrictions on his residence and travel.
74.  On 19 December 2014 Mr Mammadov made a second application to the Court alleging violations of the Convention arising from the conduct of his trial and conviction which followed his pre-trial detention examined by the Court in the first Mammadov judgment (see paragraphs 19-27 above).
75.  In the second Mammadov judgment, cited above, the Court found a violation of Article 6 § 1 in connection with his trial and conviction; events also examined by the Committee of Ministers in the execution proceedings for the first Mammadov judgment (see paragraphs 45 to 48 above).
76.  In that judgment, delivered on 16 November 2017, after the Committee of Ministers had put Azerbaijan on formal notice in relation to the first Mammadov judgment (see paragraph 66 above), the Court first considered in detail the scope of its examination, stating:
“202.  The scope of the [first] Ilgar Mammadov judgment was limited, inter alia, to the issues of compatibility with Articles 5 §§ 1 (c) and 4 and Article 18 of the Convention of the applicant’s detention during the pre-trial stage of the proceedings. In the present case, however, the Court is called upon to examine a different set of legal issues – namely, whether the criminal proceedings against the applicant, taken as a whole, were fair, as required by Article 6 of the Convention. 203.  While the issues to be examined and the legal standards applicable under Article 6 of the Convention are different, both the previous case and the present case concern the same criminal proceedings against the applicant involving the same charges stemming from the same events. As the Court held in the [first] Ilgar Mammadov judgment, during the pre-trial stage of the proceedings, the accusations against the applicant suffered from a prima facie lack of plausibility. In particular, the Court highlighted the fact that the applicant was accused of arriving in Ismayilli one day after the spontaneous and disorganised “acts of hooliganism” had already taken place and that within the short period of two hours, his overall stay in the town, he managed to seize a significant degree of control over the situation, turn the ongoing disorganised rioting into “organised acts” of disorder, establish himself as a leader of the protestors whom he had not known before and who had already gathered without his involvement, and directly cause all of their subsequent disorderly actions. As already noted, this lack of plausibility of the accusations, coupled with the attitude of the authorities towards the applicant’s political activities, called for a high level of scrutiny of the facts. The circumstances on which this previous finding of the Court was based remain unchanged in the present case. The Court will therefore proceed with analysing under Article 6 whether this deficiency has been compensated by the evidence presented at the trial and the reasons provided by the domestic courts.”
77.  Then, concluding in respect of Article 6, it found:
“237.  Having regard to the aforementioned considerations, the Court finds that the applicant’s rights to a reasoned judgment and to examine witnesses were infringed. His conviction was based on flawed or misrepresented evidence and his objections in this respect were inadequately addressed. The evidence favourable to the applicant was systematically dismissed in an inadequately reasoned or manifestly unreasonable manner. Even though the case was remitted once for a new examination by the Supreme Court and an attempt was made to address some of the defence’s requests and objections, none of the shortcomings noted above were eventually remedied. The above findings are sufficient to conclude that the criminal proceedings against the applicant, taken as a whole, did not comply with guarantees of a fair trial.”
78.  In relation to Mr Mammadov’s complaint of a violation of Article 18 in conjunction with Article 6 the Court stated in the second Mammadov judgment, cited above:
“260.  The Court recalls that it has already held in [the first] Ilgar Mammadov judgment (cited above, §§ 142-43) that the restriction of the applicant’s liberty prior to the conviction which is the focus of the present application had been applied for purposes other than bringing him before a competent legal authority on a reasonable suspicion of having committed an offence. This led the Court in that case to find a breach of Article 18 taken in conjunction with Article 5 of the Convention (...). 261.  Furthermore, the Court observes that the question of whether Article 6 of the Convention contains any express or implied restrictions which may form the subject of the Court’s examination under Article 18 of the Convention remains open .... 262.  Taking those circumstances into account and having further regard to the submissions of the parties and its findings under Article 6 § 1 of the Convention, the Court considers that there is no need to give a separate ruling on the complaint under Article 18 in the present case (compare Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, with further references).”
79.  Concerning the remaining issues, it found that Mr Mammadov’s complaint under Articles 6 and 13 concerning the length of proceedings, and his complaint under Article 17 were inadmissible. It concluded that it was not necessary to examine separately the admissibility or merits of his complaints under Articles 13 and 14, or under Article 18 in conjunction with Article 6.
80.  Under Article 41, it awarded him EUR 10 000 for any non-pecuniary damage suffered (ibid., § 269).
81.  Following extensive work carried out over a number of decades on the legal principles of State responsibility as set out in a series of Draft Articles, in 2001 the International Law Commission adopted those Articles which became known as the Articles on Responsibility of States for Internationally Wrongful Acts (the “ARSIWA”). The International Law Commission submitted the text to the United Nations General Assembly in a report which contained commentaries on the Articles.[3]
82.  The United Nations General Assembly has given consideration to those Articles on a number of occasions since 2001. At its seventy-first session the Sixth Committee of the General Assembly adopted resolution 71/133 on 19 December 2016 which acknowledged the growing number of decisions of international courts, tribunals and other bodies referring to them, and continued to acknowledge their importance and usefulness.
83.  The Articles formulate general conditions under international law for the State to be considered responsible for wrongful actions and omissions, and the legal consequences which flow therefrom. Concerning the applicability of the Articles, paragraph (4) (b) of the General Commentary states as follows:
“... Nor do the articles cover such indirect or additional consequences as may flow from the responses of international organisations to wrongful conduct. In carrying out their functions it may be necessary for international organisations to take a position on whether a State has breached an international obligation. But even where this is so, the consequences will be those determined by or within the framework of the constituent instrument of the organisation, and these fall outside the scope of the articles.”
84.  Article 30 which relates to cessation and non-repetition reads:
“The State responsible for the internationally wrongful act is under an obligation:
(a)  to cease that act, if it is continuing;
(b)  to offer appropriate assurances and guarantees of non-repetition, if circumstances so require.”
85.  Article 31 is titled “Reparation” and states:
“1.  The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.
86.  According to the commentaries on that article a number of principles arising from international law should be used to interpret those provisions:
“(9)  Paragraph 2 addresses a further issue, namely the question of a causal link between the internationally wrongful act and the injury. It is only “[i]njury ... caused by the internationally wrongful act of a State” for which full reparation must be made. This phrase is used to make clear that the subject matter of reparation is, globally, the injury resulting from and ascribable to the wrongful act, rather than any and all consequences flowing from an internationally wrongful act.
(10)  The allocation of injury or loss to a wrongful act is, in principle, a legal and not only a historical or causal process [...]. But other factors may also be relevant: for example, whether State organs deliberately caused the harm in question, or whether the harm caused was within the ambit of the rule which was breached, having regard to the purpose of that rule. In other words, the requirement of a causal link is not necessarily the same in relation to every breach of an international obligation[4]. In international as in national law, the question of remoteness of damage “is not a part of the law which can be satisfactorily solved by search for a single verbal formula”. The notion of a sufficient causal link which is not too remote is embodied in the general requirement in article 31 that the injury should be in consequence of the wrongful act, but without the addition of any particular qualifying phrase.
(11)  A further element affecting the scope of reparation is the question of mitigation of damage. Even the wholly innocent victim of wrongful conduct is expected to act reasonably when confronted by the injury. Although often expressed in terms of a “duty to mitigate”, this is not a legal obligation which itself gives rise to responsibility. It is rather that a failure to mitigate by the Injured Party may preclude recovery to that extent ...”
87.  Article 32 is titled “Irrelevance of internal law”:
“The responsible State may not rely on the provisions of its internal law as justification for failure to comply with its obligations under this part.”
88.  Articles 34 to 37 address the constituent elements of reparation, (restitution, compensation and satisfaction):
“Article 34. Forms of reparation
Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination, in accordance with the provisions of this chapter.
Article 35. Restitution
A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution:
(a)  is not materially impossible;
(b)  does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.
Commentary
(1)  In accordance with article 34, restitution is the first of the forms of reparation available to a State injured by an internationally wrongful act. Restitution involves the re-establishment as far as possible of the situation which existed prior to the commission of the internationally wrongful act, to the extent that any changes that have occurred in that situation may be traced to that act. In its simplest form, this involves such conduct as the release of persons wrongly detained or the return of property wrongly seized. In other cases, restitution may be a more complex act.
...
Article 36. Compensation 1.  The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution. 2.  The compensation shall cover any financially assessable damage including loss of profits insofar as it is established.
Article 37. Satisfaction 1.  The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation. 2.  Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality.
89.  The Committee of Ministers, which is the executive body of the Council of Europe, supervises the execution of the judgments of the Court under Article 46 of the Convention. For this purpose it has adopted Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements reflecting the principles of state responsibility in international law. It has also adopted a number of “practical modalities” which govern its daily work.
90.  The Committee of Ministers adopted the Rules governing the supervision of the execution of judgments on 10 May 2006 at the 964th meeting of the Ministers’ Deputies (later amended on 18 January 2017 at the 1275th meeting of the Ministers’ Deputies).
91.  Rule 6 states as follows:
“Rule 6 - Information to the Committee of Ministers on the execution of the judgment 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 measures1 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 measures2 have been adopted, preventing new violations similar to that or those found or putting an end to continuing violations.
__________________ 1.  For instance, the striking out of an unjustified criminal conviction from the criminal records, the granting of a residence permit or the reopening of impugned domestic proceedings (see on this latter point Recommendation Rec(2000)2 of the Committee of Ministers to member states on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights, adopted on 19 January 2000 at the 694th meeting of the Ministers’ Deputies). 2.  For instance, legislative or regulatory amendments, changes of case-law or administrative practice or publication of the Court’s judgment in the language of the respondent state and its dissemination to the authorities concerned.”
92.  Rule 8 provides for the accessibility of information submitted in the supervision process:
“Rule 8 - Access to information 1.  The provisions of this Rule are without prejudice to the confidential nature of the Committee of Ministers’ deliberations in accordance with Article 21 of the Statute of the Council of Europe. 2.  The following information shall be accessible to the public unless the Committee decides otherwise in order to protect legitimate public or private interests:
a.  information and documents relating thereto provided by a High Contracting Party to the Committee of Ministers pursuant to Article 46, paragraph 2, of the Convention;
b.  information and documents relating thereto provided to the Committee of Ministers, in accordance with the present Rules, by the Injured Party, by non‑governmental organisations or by national institutions for the promotion and protection of human rights.
...”
93.  Rule 9 allows information to be submitted to the Committee of Ministers by individual applicants, non-governmental organisations and other bodies on the execution of a judgment. It states:
“Rule 9 - Communications to the Committee of Ministers 1.  The Committee of Ministers shall consider any communication from the Injured Party with regard to payment of the just satisfaction or the taking of individual measures. 2.  The Committee of Ministers shall be entitled to consider any communication from non-governmental organisations, as well as national institutions for the promotion and protection of human rights, with regard to the execution of judgments under Article 46, paragraph 2, of the Convention. 3.  The Committee of Ministers shall also be entitled to consider any communication from an international intergovernmental organisation or its bodies or agencies whose aims and activities include the protection or the promotion of human rights, as defined in the Universal Declaration of Human Rights, with regard to the issues relating to the execution of judgments under Article 46, paragraph 2, of the Convention which fall within their competence. 4.  The Committee of Ministers shall likewise be entitled to consider any communication from an institution or body allowed, whether as a matter of right or upon special invitation from the Court, to intervene in the procedure before the Court, with regard to the execution under Article 46, paragraph 2, of the Convention of the judgment either in all cases (in respect of the Council of Europe Commissioner for Human Rights) or in all those concerned by the Court’s authorisation (in respect of any other institution or body). 5.  The Secretariat shall bring, in an appropriate way, any communication received under paragraph 1 of this Rule, to the attention of the Committee of Ministers. 6.  The Secretariat shall bring any communication received under paragraphs 2, 3 or 4 of this Rule to the attention of the State concerned. When the State responds within five working days, both the communication and the response shall be brought to the attention of the Committee of Ministers and made public. If there has been no response within this time limit, the communication shall be transmitted to the Committee of Ministers but shall not be made public. It shall be published ten working days after notification, together with any response received within this time limit. A State response received after these ten working days shall be circulated and published separately upon receipt.”
94.  Rule 11 sets out the procedure in infringement proceedings under Article 46 § 4 of the Convention:
“Rule 11- Infringement proceedings 1.  When in accordance with Article 46, paragraph 4, of the Convention the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two-thirds of the representatives entitled to sit on the Committee, refer to the Court the question whether that Party has failed to fulfil its obligation. 2.  Infringement proceedings should be brought only in exceptional circumstances. They shall not be initiated unless formal notice of the Committee’s intention to bring such proceedings has been given to the High Contracting Party concerned. Such formal notice shall be given ultimately six months before the lodging of proceedings, unless the Committee decides otherwise, and shall take the form of an interim resolution. This Resolution shall be adopted by a majority vote of two-thirds of the representatives entitled to sit on the Committee. 3.  The referral decision of the matter to the Court shall take the form of an interim resolution. It shall be reasoned and concisely reflect the views of the High Contracting Party concerned. 4.  The Committee of Ministers shall be represented before the Court by its Chair unless the Committee decides upon another form of representation. This decision shall be taken by a two-thirds majority of the representatives casting a vote and a majority of the representatives entitled to sit on the Committee.”
95.  Rule 16 addresses the adoption of interim resolutions in the execution process and their intended function:
“Rule 16 – Interim resolutions
In the course of its supervision of the execution of a judgment or of the terms of a friendly settlement, the Committee of Ministers may adopt interim resolutions, notably in order to provide information on the state of progress of the execution or, where appropriate, to express concern and/or to make suggestions with respect to the execution.”
96.  Rule 17 states:
“Rule 17 - Final resolution
After having established that the High Contracting Party concerned has taken all the necessary measures to abide by the judgment or that the terms of the friendly settlement have been executed, the Committee of Ministers shall adopt a Resolution concluding that its functions under Article 46, paragraph 2, or Article 39, paragraph 4, of the Convention have been exercised.”
97.  The procedures for the supervision of the execution of judgments were adopted by the Committee of Ministers in 2010 (see Information document: CM/Inf/DH(2010)37).
98.  The procedures were based on two principles. The first is that of “continuous supervision”, meaning that all final judgments remain under the continuous supervision of the Committee of Ministers until the Committee closes its supervision procedure by adopting a final resolution (see paragraph 96 above).
99.  The second principle is that of prioritisation, as implemented through the Committee of Ministers’ “twin-track” approach. In line with that approach, all cases pending in the supervision process will be examined under the “standard supervision” track unless, because of its specific nature, a case warrants consideration under the “enhanced supervision” track.
100.  Applying these two principles means that it is not necessary to include every case pending execution on the agenda of the Committee of Ministers’ quarterly Human Rights meetings. These meetings are dedicated to the supervision of the Court’s judgments and held in March, June, September and December (in accordance with Article 3 of the Statute of the Council of Europe and Section III. 3. of the Committee’s general Rules of Procedure). The cases pending execution remain under the Committee’s continued supervision, as entrusted to the Committee’s secretariat. The Committee’s quarterly meetings are therefore reserved for the examination of a minority of the cases pending which are classified under the enhanced procedure and which may require more active intervention by the Committee such as the adoption of decisions and/or interim resolutions, in the latter case usually following debate and sometimes a vote.
101.  The types of cases that may be placed in the enhanced procedure are judgments requiring urgent individual measures; pilot judgments; judgments raising structural and/or complex problems as identified by the Court or by the Committee of Ministers; and interstate cases.
102.  In order to allow the Committee of Ministers to effectively carry out its supervision role respondent states should submit Action Plans and/or Action reports to the Committee to inform it of the measures planned and/or adopted to execute a judgment of the Court (see also paragraph 91 above about Rule 6 of the Rules).
103.  For cases classified in the enhanced procedure, the Committee of Ministers entrusts its Secretariat with a role of more intensive and pro-active cooperation with States.
104.  There have been relatively few applications to the Court under Article 18 in conjunction with Article 5 (for a summary of the Court’s case‑law see the recent judgment in Merabishvili v. Georgia [GC], no. 72508/13, §§ 264-282, 28 November 2017). To date there have been nine cases where the Court has found such a violation, including in the first Mammadov judgment. The first was Gusinskiy v. Russia, no. 70276/01, ECHR 2004‑IV. After that, Cebotari v. Moldova, no. 35615/06, 13 November 2007; then two cases against Ukraine: Lutsenko v. Ukraine, no. 6492/11, 3 July 2012, and Tymoshenko v. Ukraine, no. 49872/11, 30 April 2013. Those were followed by Rasul Jafarov v. Azerbaijan, no. 69981/14, 17 March 2016, Merabishvili v. Georgia, cited above, Mammadli v. Azerbaijan, no. 47145/14, 19 April 2018, and Rashad Hasanov and Others v. Azerbaijan, nos. 48653/13 and 3 others, 7 June 2018.
105.  Of the eight cases listed above, three became final relatively recently and have not yet been examined by the Committee of Ministers – Merabishvili, Mammadli, and Rashad Hasanov cited above. Four cases have been examined by the Committee and are pending in the supervision procedure – Gusinskiy, Lutsenko, Tymoshenko and Rasul Jafarov, all cited above. Finally, the Committee of Ministers has closed the supervision procedure in one case, Cebotari, cited above. An overview of the execution process is set out below.
(b)  Cases pending supervision before the Committee of Ministers where the Court found a violation of Article 18 in conjunction with Article 5
(i)  Individual measures
106.  In the four cases pending supervision where there has been a violation of Article 18 in conjunction with Article 5, the Committee of Ministers has examined three elements taken by respondent states as individual measures – payment of the just satisfaction, erasure of the negative consequences of the impugned decision, and release of the applicants following the judgment.
107.  The Committee noted that payment of the just satisfaction and release of the applicants had occurred in Lutsenko, cited above (examination at the 1172nd Human Rights meeting (4-6 June 2013) and Tymoshenko, cited above (examination at the 1193rd Human Rights meeting (4-6 March 2014)). In Gusinskiy, cited above (examination at the 1243rd Human Rights meeting (8-9 December 2015)), the Committee noted that the applicant was released prior to the Court’s judgment becoming final and the commercial agreement the applicant was intimidated into signing whilst held in detention on remand was not enforced.
108.  In Rasul Jafarov, cited above, the applicant was pardoned and released the day that the judgment of the European Court was delivered, however the just satisfaction was not paid in full. Notwithstanding his pardon, as a result of his conviction the applicant was prevented from standing for any elections in Azerbaijan until 2021, and from admission to the Bar Association also until 2021. In the decision adopted at the Committee’s 1294th Human Rights meeting (19-21 September 2017) the Committee:
“1.  urged the authorities to pay without delay the remaining amount of just satisfaction, including default interest; 2.  in view of the seriousness of the consequences which the applicant continues to suffer despite his early release, urged the authorities to explore all avenues including a reopening of the impugned proceedings in order to erase the consequences of the violations found;”
(ii)  General measures
109.  In respect of the general measures taken in the four cases pending supervision to avoid similar violations of Article 18 in conjunction with Article 5, the Committee’s Secretariat’s analysis in the cases of Tymoshenko and Lutsenko (see the Committee’s examination of the case at its 1193rd Human Rights meeting (4-6 March 2014)) indicated:
“... reform of the prosecution service and the constitutional reform aimed at strengthening the independence of the judiciary, appear relevant and interesting and a more in-depth examination is under way (both these draft legislative reforms have been examined from a more general point of view by the Venice Commission in 2013 – see CDL‑AD(2013)025E and CDL‑AD(2013)034E). It also underlined that the progress achieved in these respects is also followed in the context of other groups of cases, notably the Oleksandr Volkov case, also dealing with important shortcomings in the organisation of the Ukrainian judiciary.”
110.  In the third case, Gusinsky, the Secretariat’s analysis prepared at the 1243rd meeting (8-9 December 2015) advised the Committee in relation to the violation of Article 18 in conjunction with Article 5 that:
“... it appears that this violation was closely linked to the vagueness of the law at the time and the absence of effective judicial review of detention of suspects. The new CCP adopted in 2001 appears to have eliminated the vagueness of Article 90 of the 1960 CCP. Effective judicial review has also been introduced. Accordingly, the kind of abuse of power by the executive and the prosecutor services at issue in the Gusinskiy case would today be subjected to effective judicial review. These developments also appear to address the violation of Article 5 found in this case.”
111.  In its decision at that meeting the Committee:
“... welcomed the efforts made by the Russian authorities aimed at aligning Russian legislation and practice with the Convention requirements under Article 5 of the Convention”.
However, the Gusinsky case remains pending to ensure supervision of other elements arising from the judgment in the context of the Committee’s supervision of the Klyakin group v. Russia (see the examination of that group of cases at its 1294th Human Rights meeting (19-21 September 2017)).
112.  The general measures in the case of Rasul Jafarov, cited above, were considered by the Committee to be the same as in the first Mammadov judgment and therefore that case also remains pending supervision (examination at the 1294th Human Rights meeting (19-21 September 2017)).
(c)  Case where the Court found a violation of Article 18 in conjunction with Article 5 and the Committee of Ministers has closed the supervision procedure
113.  As mentioned above (see paragraph 105), the Committee of Ministers has closed the supervision process in Cebotari, cited above. In that case, the applicant had been released and acquitted by the domestic courts before the judgment of this Court became final (see Cebotari, cited above, § 36). Concerning the general measures the Committee was advised (see the Order of Business from the 1259th Human Rights meeting (7-8 June 2016)) that:
“the reform of the Moldovan prosecution service, and notably the new Law on the Prosecution Service of February 2016, appear to improve and consolidate the independence of the prosecution from executive and legislative powers (in particular as regards the handling of individual cases), exclude political involvement of prosecutors, including the Prosecutor General, and enhance their criminal and disciplinary accountability. Taking also into account the fact that no further violations of Article 18 have been established since, these measures would appear in principle capable of preventing abuse of the kind here at issue. As the question of individual measures is resolved, it is accordingly proposed to close the supervision of the Cebotari case.”
114.  Accordingly, the Committee decided to close its supervision of the case at its 1259th Human Rights meeting (8 June 2016 (see Final Resolution CM/ResDH(2016)147)).
115.  The idea of introducing infringement proceedings as a procedural possibility in the Convention was set out by the Parliamentary Assembly to the Council of Europe in its Resolution 1226(2000) and followed up in Assembly Recommendation 1477(2000). The initial proposal was to amend the Convention to introduce a system of “astreintes” (daily fines for a delay in the performance of a legal obligation) to be imposed on states that persistently fail to execute a judgment. The Recommendation does not indicate whether the Committee of Ministers or the Court was intended to have the power to impose a fine.
116.  The proposal to impose fines was not ultimately taken up in Protocol 14 but it initiated a debate which led to the insertion of Article 46 § 4 in the Convention. That debate was about the need to increase the Committee of Ministers’ powers when supervising the execution of judgments. As it states in the Explanatory Report to Protocol No. 14:
“Measures to be taken concerning execution of judgments 16.  Execution of the Court’s judgments is an integral part of the Convention system. The measures that follow are designed to improve and accelerate the execution process. The Court’s authority and the system’s credibility both depend to a large extent on the effectiveness of this process. Rapid and adequate execution has, of course, an effect on the influx of new cases: the more rapidly general measures are taken by States Parties to execute judgments which point to a structural problem, the fewer repetitive applications there will be. In this regard, it would be desirable for states, over and above their obligations under Article 46, paragraph 1, of the Convention, to give retroactive effect to such measures and remedies. Several measures advocated in the above-mentioned recommendations and resolutions pursue this aim. In addition, it would be useful if the Court and, as regards the supervision of the execution of judgments, the Committee of Ministers, adopted a special procedure so as to give priority treatment to judgments that identify a structural problem capable of generating a significant number of repetitive applications, with a view to securing speedy execution of the judgment. The most important Convention amendment in the context of execution of judgments of the Court involves empowering the Committee of Ministers to bring infringement proceedings in the Court against any state which refuses to comply with a judgment. 17.  The measures referred to in the previous paragraph are also designed to increase the effectiveness of the Convention system as a whole. While the supervision of the execution of judgments generally functions satisfactorily, the process needs to be improved to maintain the system’s effectiveness
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Article 46 – Binding force and execution of judgments
... 98.  Rapid and full execution of the Court’s judgments is vital. It is even more important in cases concerning structural problems, so as to ensure that the Court is not swamped with repetitive applications. For this reason, ever since the Rome ministerial conference of 3 and 4 November 2000 (Resolution I), it has been considered essential to strengthen the means given in this context to the Committee of Ministers. The Parties to the Convention have a collective duty to preserve the Court’s authority – and thus the Convention system’s credibility and effectiveness – whenever the Committee of Ministers considers that one of the High Contracting Parties refuses, expressly or through its conduct, to comply with the Court’s final judgment in a case to which it is party. 99.  Paragraphs 4 and 5 of Article 46 accordingly empower the Committee of Ministers to bring infringement proceedings in the Court (which shall sit as a Grand Chamber – see new Article 31, paragraph b), having first served the state concerned with notice to comply. The Committee of Ministers’ decision to do so requires a qualified majority of two thirds of the representatives entitled to sit on the Committee. This infringement procedure does not aim to reopen the question of violation, already decided in the Court’s first judgment. Nor does it provide for payment of a financial penalty by a High Contracting Party found in violation of Article 46, paragraph 1. It is felt that the political pressure exerted by proceedings for noncompliance in the Grand Chamber and by the latter’s judgment should suffice to secure execution of the Court’s initial judgment by the state concerned. 100.  The Committee of Ministers should bring infringement proceedings only in exceptional circumstances. None the less, it appeared necessary to give the Committee of Ministers, as the competent organ for supervising execution of the Court’s judgments, a wider range of means of pressure to secure execution of judgments. Currently the ultimate measure available to the Committee of Ministers is recourse to Article 8 of the Council of Europe’s Statute (suspension of voting rights in the Committee of Ministers, or even expulsion from the Organisation). This is an extreme measure, which would prove counter-productive in most cases; indeed the High Contracting Party which finds itself in the situation foreseen in paragraph 4 of Article 46 continues to need, far more than others, the discipline of the Council of Europe. The new Article 46 therefore adds further possibilities of bringing pressure to bear to the existing ones. The procedure’s mere existence, and the threat of using it, should act as an effective new incentive to execute the Court’s judgments. It is foreseen that the outcome of infringement proceedings would be expressed in a judgment of the Court.”