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Does Art. 18 ECHR grant protection against politically motivated criminal proceedings? (Part 2) – Prerequisites, questions of evidence and scope of application
Abstract
In the first part of this essay, we concluded that the European Court of Human Rights in Strasbourg has attributed a new role to Art. 18 ECHR, elevating this provision to a novel human rights guarantee against politically or otherwise unduly motivated criminal proceedings. This second part of the essay is dedicated to procedural aspects and issues concerning the application of Art. 18 ECHR. First, we determine the requirements for a conviction under this provision and how they can be proven. Since the burden and standard of proof have decisive influence on the success of applications lodged with the European Court of Human Rights, the effectiveness of the protection against criminal prosecution driven by ulterior motives depends upon these questions. Second, we assess the scope of application of Art. 18 ECHR including, most importantly, the question of whether there is room for its application when absolute Convention guarantees are violated. Third, we examine the potential legal consequences of a conviction under Art. 18 ECHR and evaluate their suitability as compensation for the violation. Finally, we give a brief outlook on the role and effects of Art. 18 ECHR in the future.
... A breach of Article 18 ECHR signals to the community of Convention States that there has not only been an 'ordinary' violation of a Convention guarantee. 83 The finding of a violation of Article 18 ECHR raises the red flag; it highlights that the respondent State has deliberately acted against the presumption that public authorities in the member States act in good faith and in so doing has intentionally damaged the foundation of trust underlying the Convention structure. 84 It is only when the Court clearly identifies and sanctions 85 such violations that it will sound the alarm for the state of democracy and the rule of law in Europe. ...
This edited book brings you a collection of current, critical issues regarding the theory and practice of the European Court of Human Rights. The book is divided into three parts: procedural concerns, principles and jurisprudence, and interaction with national legal systems. Each chapter was written by an expert, with each author coming from a distinct background. The authors all presented at the 2019 University of Leipzig’s & University of Dresden’s 1st International Summer School on the European Court of Human Rights, with only select presenters asked to contribute to this book. The book’s goal is to promote further research and discourse on the operation of the Court, a goal that will be continued in the second summer school in 2021. With contributions by Veronika Bilkova, Katharina Braun, Robert Frau, Hanaa Hakiki, Beti Hohler, Stefanie Lemke, Helga Molbaek-Steensig, Jacopo Roberti di Sarsina, Christiane Schmaltz, Barbara Sonczyk, Dominik Steiger, Edith Wagner and Alain Zysset.
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