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109
e Dawn of Article 18 ECHR
doi: 10.3249/1868-1581-9-1-tan
Goettingen Journal of International Law 9 (2018) 1, Special Ed. Holterhus, 109-141
* PhD candidate at the Grotius Centre for International Legal Studies, Leiden University
(f.tan@law.leidenuniv.nl). e research for this article was carried out as visiting researcher
at the European Court of Human Rights, Strasbourg. e visit was sponsored by the
Leiden University Fund / Kroese-Duijsters Fonds. I would like to thank Leonie Huijbers
and the anonymous peer-reviewers for their thoughtful comments on an earlier draft.
e Dawn of Article 18 ECHR: A Safeguard
Against European Rule of Law Backsliding?
Floris Tan*
Table of Contents
A. Introduction ......................................................................................... 111
B. e Rationale of Article 18 ECHR: Protecting the Rule of Law ........... 114
I. e Notion of the Rule of Law .........................................................114
II. e Specter of Totalitarianism and Rule of Law Protection
in the ECHR ................................................................................... 115
III. Article 18 and the Rule of Law ......................................................... 118
C. e Defective Application of Article 18 in the Court’s Case-Law .........121
I. Introduction ..................................................................................... 121
II. An Extremely Narrow Scope of Application .....................................121
III. An Insurmountable Burden and Standard of Proof ..........................125
1. e Burden of Proof .....................................................................125
2. e Standard and Means of Proof ................................................127
3. What Must Be Proven ..................................................................129
IV. Ré su mé ............................................................................................132
D. A New Dawn for Article 18? Merabishvili v. Georgia and Beyond .........133
I. Two Steps Forward… .......................................................................134
II. …And One Step Back? ....................................................................136
III. Résumé ............................................................................................139
E. Conclusion ........................................................................................... 140
110 GoJIL 9 (2018) 1, Special Ed. Holterhus, 109-141
Abstract
is article examines an underexplored avenue for the protection of the rule of
law in Europe: Article 18 of the European Convention on Human Rights. is
provision prohibits States from restricting the rights enshrined in the European
Convention for any other purpose than provided for in the Convention. In this
contribution, the author argues, based on a combination of textual, systematic
and purposive interpretations of Article 18, that the provision is meant to
safeguard against rule of law backsliding, in particular because governmental
restrictions of human rights under false pretenses present a clear danger to
the principles of legality and the supremacy of law. Such limitations of rights
under the guise of legitimate purposes go against the assumption of good faith
underlying the Convention, which presupposes that all States share a common
goal of reinforcing human rights and the rule of law. Article 18 could therefore
function as an early warning that European States are at risk of becoming an
illiberal democracy or even of reverting to totalitarianism and the destruction of
the rule of law. e article then goes on to assess the extent to which the European
Court’s case-law reects and realizes this aim of rule of law protection, and nds
that whereas the Court’s earlier case-law left very little room for an eective
application of Article 18, the November 2017 Grand Chamber judgment in
Merabishvili v. Georgia has made large strides in eectuating the provision’s
raison d’ être. As the article shows, however, even under this new interpretation,
challenges remain.
111
e Dawn of Article 18 ECHR
A. Introduction
On the European level, the rule of law is safeguarded by multiple institutions
on various levels. e primary organization engaged with the rule of law is the
Council of Europe (CoE), obliging its members to “accept the principles of the
rule of law”.1 Within this system, the European Convention on Human Rights
(ECHR or Convention) and its Court enjoy most of the limelight, primarily
due to the power of the Court to take binding judicial decisions.2 Although the
protection of human rights is often considered to be only one aspect of the rule
of law, and the Convention does not contain a right to be governed by the rule
of law as such, the Court has nevertheless read certain rule of law requirements
into the Convention. To this end, it held that “[o]ne reason why the signatory
Governments decided to ‘take the rst steps for the collective enforcement of
certain of the Rights stated in the Universal Declaration’ was their profound
belief in the rule of law”.3 is reasoning has led the Court to recognize the
rule of law as “a concept inherent in all the Articles of the Convention”,4 and to
employ it in the interpretation of various Convention rights.5
Beyond such interpretations, the Convention also contains a provision
that could be considered specically geared to the protection of the rule of
law within the Council of Europe. It concerns the rarely invoked – even more
rarely found to be violated6 – Article 18 of the Convention which provides
1 Statute of the Council of Europe, 5 May 1949, Art. 3, 87 UNTS 103.
2 e Court itself has characterized the Convention as “a constitutional instrument of
European public order”, see among other authorities, Al-Dulimi and Montana Management
Inc. v. Switzerland [GC], ECtHR Application No. 5809/08, Judgment of 21 June 2016,
para. 145. Further on this subject, see E. A. Alkema, ‘e European Convention as
a Constitution and its Court as a Constitutional Court’, in P. Mahoney et al. (eds.),
Protection des Droits de l’Homme: La Perspective Européenne/Protecting Human Rights: e
European Perspective. Mélanges à la Mémoire de/Studies in Memory of Rolv Ryssdal (2000),
41, 41-63.
3 Golder v. e United Kingdom, ECtHR Application No. 4451/70, Judgment of 21
February 1975, para. 34.
4 Mozer v. e Republic of Moldova and Russia [GC], ECtHR Application No. 11138/10,
Judgment of 23 February 2016, para. 134; Baka v. Hungary [GC], ECtHR Application
No 20261/12, Judgment of 23 June 2016, para. 117 [Baka v. Hungary [GC]].
5 Baka v. Hungary [GC], supra note 4, for the right to access to court. See also Brumărescu
v. Romania [GC], ECtHR Application No. 28342/95, Judgment of 28 October 1999,
para. 61, pertaining to legal certainty and the nality of judicial decisions.
6 Also according to the Court itself, see Khodorkovskiy and Lebedev v. Russia, ECtHR
Application No. 11082/06 and 13772/05, Judgment of 25 July 2013, para. 898
[Khodorkovskiy and Lebedev v. Russia].
112 GoJIL 9 (2018) 1, Special Ed. Holterhus, 109-141
that: “e restrictions permitted [to the rights and freedoms under the ECHR]
shall not be applied for any purpose other than those for which they have been
prescribed.” At rst glance this provision merely reiterates the obvious; when
restricting rights, States must comply with the restriction clauses accompanying
those rights. However, numerous judges, in separate opinions and invoking the
travaux préparatoires, have expressed their belief that Article 18 was included in
the Convention “as a defence against abusive limitations of Convention rights
and freedoms and thus to prevent the resurgence of undemocratic regimes in
Europe”7 – indicating their view of Article 18 as a bulwark against dictatorial
rule and as part of the arsenal of the militant democracy.8 Such a view has also
been defended in scholarly debate.9
e argument in essence provides that Article 18 protects against abuse
of power (détournement de pouvoir) by outlawing the restriction of rights for any
ulterior purpose – in other words, where rights are restricted in a way that serves
a “hidden agenda”.10 By way of example, several States have used their criminal
justice systems and their powers of detention to take out political dissidents,
detaining them under false pretenses – sometimes at tactical moments in order
to frustrate their political ambitions.11 Such limitations of rights under the
7 Joint Partly Dissenting Opinion of Judges Nicolaou, Keller and Dedov to Navalnyy and
Otserov v. Russia, ECtHR Application No. 46632/13 and 28671/14, Judgment of 23
February 2016, para. 2 [Navalnyy and Otserov v. Russia].
8 See also R. de Lange, ‘Case Note: Kasparov v. Russia’ (2017), 18 European Human Rights
Cases 2017/31, para. 9. I prefer the term “militant democrac y” over the Court’s terminology
of a “democracy capable of defending itself” or “démocratie apte à se défendre” for the
sake of brevity.
9 See H. Satzger, F. Zimmermann & M. Eibach, ‘Does Art. 18 ECHR Grant Protection
Against Politically Motivated Criminal Proceedings? Rethinking the Interpretation
of Art. 18 ECHR Against the Background of New Jurisprudence of the European
Court of Human Rights’, 4 European Criminal Law Review (2014) 2, 91, 106 [Satzger,
Zimmermann & Eibach, Art. 18 Part 1]; H. Satzger, F. Zimmermann & M. Eibach, ‘Does
Art. 18 ECHR Grant Protection Against Politically Motivated Criminal Proceedings?
(Part 2) – Prerequisites, Questions of Evidence and Scope of Application’, 4 European
Criminal Law Review (2014) 3, 248 [Satzger, Zimmermann & Eibach, Art. 18 Part 2]; H.
Keller & C. Heri, ‘Selective Criminal Proceedings and Article 18 ECHR. e European
Court of Human Rights’ Untapped Potential to Protect Democracy’, 37 Human Rights
Law Journal (2016) 1, 1.
10 See e.g. Rasul Jafarov v. Azerbaijan, ECtHR Application No. 69981/14, Judgment of 17
March 2016, para. 153 [Rasul Jafarov v. Azerbaijan].
11 E.g. Ilgar Mammadov v. Azerbaijan, ECtHR Application No. 15172/13, Judgment of 22
May 2014 [Ilgar Mammadov v. Azerbaijan]. is appeared to be the case also in a number
of Russian cases, although the Court ultimately did not decide this issue under Article 18.
113
e Dawn of Article 18 ECHR
guise of legitimate purposes go against the assumption of good faith underlying
the Convention, which presupposes that all States share a common goal of
reinforcing human rights and the rule of law. Article 18 could therefore function
as an early warning system for European States who are at risk of becoming an
illiberal democracy or even of reverting to totalitarianism and the destruction
of the rule of law – a function that might prove crucial given the worrisome
contemporary developments in a number of Council of Europe States, such as
Hungary, Poland, Russia and Turkey.
is potential of Article 18 has not materialized in the Court’s case-law
thus far.12 Violations have proved extremely rare, and the burden of proof placed
on applicants almost insurmountable. ere has been clear dissonance within
the Court on this issue, as is exemplied by the numerous separate opinions
on this subject in recent years, with judges expressing their, at times, very
outspoken and repeated discontent with the line in the Court’s jurisprudence.13
e landmark Grand Chamber judgment of 28 November 2017 in Merabishvili
v. Georgia seems to take account of these critiques,14 but as the issue pertaining
to Article 18 was decided with a minimal majority of 9 versus 8 judges, and
with the Article 18 case of Navalnyy pending before the Grand Chamber,15 the
discussion seems far from being put to bed.
Against this background, this contribution explores Article 18 in light of
its purpose of protecting the rule of law and its function as an alarm against rule
of law backsliding. In doing so, the article, rstly, sets out how restrictions of
human rights under false pretenses present an early warning for a dismantling
of the rule of law, and it argues that Article 18 was meant to serve as such a
warning based on the travaux préparatoires, various separate opinions and legal
scholarship (section B). Subsequently it critically assesses the Court’s case-law
under Article 18 from the perspective of rule of law protection, and maps out
See e.g. Kasparov v. Russia, ECtHR Application No. 53659/07, Judgment of 11 October
2016 [Kasparov v. Russia].
12 See also Keller & Heri, supra note 9.
13 E.g. Concurring Opinion of Judge Kūris appended to Tchankotadze v. Georgia, ECtHR
Application No. 15256/05, Judgment of 21 June 2016 [Tchankotadze v. Georgia].
14 Merabishvili v. Georgia [GC], ECtHR Application No. 72508/13, Judgment of 28
November 2017 [Merabishvili v. Georgia [GC]].
15 e Grand Chamber handed down its judgment in this case after this GoJIL Special
Issue went to press, see Navalnyy v. Russia, ECtHR Application No. 29580/12 et al.,
Judgment of 15 November 2018. For a rst reaction, see F. Tan, ‚‘e European Court’s
Role as Warden of Democracy and the Rule of Law: Navalnyy v Russia’ (2018), available
at http://echrblog.blogspot.com/2018/11/guest-blog-on-grand-chamber-judgment-in.
html (last visited 16 December 2018).
114 GoJIL 9 (2018) 1, Special Ed. Holterhus, 109-141
several problems preventing the realization of these broader rule of law aspirations
(section C). ese hindrances to Article 18’s eective operation provide the
framework for discussion of recent developments in the Merabishvili Grand
Chamber judgment, analyzing how it potentially improves the workability of
Article 18 (section D). Section E concludes.
B. e Rationale of Article 18 ECHR: Protecting the Rule
of Law
e aim of my argument is to analyze the case-law of the Court under
Article 18 in light of its role in the protection of the rule of law in the Council
of Europe. Before turning to the in-depth case-law analysis, I therefore begin
here by constructing the link between the rule of law and, briey, the European
Convention as a whole, and Article 18 specically. A rst step in doing so is
eshing out the notion of rule of law a little bit further as any meaningful
connection between it and Article 18 is contingent on a proper understanding
of the rule of law as such.
I. e Notion of the Rule of Law
What is the rule of law? Many answers are possible, and it goes well beyond
the connes of this article to address or even scratch the surface of the full extent
of the discussion. Rather, the point is to address certain commonalities in legal
scholarship; the bare fundamentals of the rule of law, so to speak.16
A core commonality appears to be that the concept entails not merely
that governments rule by law, in the sense that they espouse their orders through
legislation, but that there exists a rule of law.17 is entails that State authorities
are bound to respect the law, and that their actions must be based in law –
also referred to as the principle of legality.18 is, however, is not all. Legal
16 is discussion is not strictly speaking limited to the rule of law as it was conceived in
common law systems, but borrows also from the French État de droit, and the German
and Dutch Rechtsstaat. Such a European rule of law conception corresponds with the
Preambular consideration that Council of Europe States have a “common heritage” when
it comes to the rule of law (Convention for the Protection of Human Rights and Fundamental
Freedoms, 4 November 1950, Preamble, para. 5, ETS 5 [ECHR]).
17 E.g. M. Krygier, ‘Rule of Law’, in M. Rosenfeld & A. Sajó (eds.), e Oxford Handbook
of Comparative Constitutional Law (2012), 233, 234.
18 C. A. J. M. Kortmann, Constitutioneel recht, 7th ed. (2016), edited by P. P. T. Bovend’Eert
et al., 51-52 .
115
e Dawn of Article 18 ECHR
theorists studying the rule of law usually conceive of the concept in procedural
terms,19 meaning the law must meet a number of formal criteria to be rule of
law-compliant. is covers concepts such as those proposed by Lon Fuller:
generality, publicity, prospectivity, intelligibility, consistency, practicability,
stability, and congruence.20 What these formal requirements have in common is
that they provide for legal certainty. Or, put negatively, they ensure legislation is
not arbitrary. Combined with the principle of legality, if every exercise of State
power must be based in legislation and legislation may not be arbitrary, this
provides a strong safeguard against the arbitrary exercise of power as such.
e constraint of State power by law, meeting certain formal criteria, is a
fundamental tenet of societies governed by the rule of law, and in this respect the
restraint of arbitrary exercise of power is not just a means, but an end in itself.21 I
will argue below that it is precisely this core rule of law value of non-arbitrariness
and governance constrained by law, that is at issue in cases concerning Article
18 of the ECHR.
II. e Specter of Totalitarianism and Rule of Law Protection in
the ECHR
e European Convention on Human Rights and the rule of law are closely
interlinked. Beyond the Preambular reference to the rule of law, the Court has
in its case-law repeatedly referenced the importance of the rule of law – most
prominently in its assessments of the quality of national legislation and judicial
safeguards, tying in with the procedural conception of the rule of law.22 Further,
when reading the Convention’s preparatory works it becomes abundantly clear
that the experiences of the Second World War had impressed on the drafters the
paramount importance of a Europe governed by the rule of law and democracy.
e drafters tellingly considered
19 J. Waldron, ‘e Rule of Law and the Importance of Procedure’, in J. E. Fleming (ed.),
Getting to the Rule of Law (2011), 4.
20 L. L. Fuller, e Morality of Law (1969), as summarized by Waldron, ibid., 5-6.
21 Krygier, supra note 17, 241-242; more extensively, see C. Brettschneider, ‘Of the Rule of
Law: Nonarbitrary Treatment and the Limits of Procedure’, in J. E. Fleming (ed.), Getting
to the Rule of Law (2011), 52.
22 D. Kosař & K. Šipulová, ‘e Strasbourg Court Meets Abusive Constitutionalism: Baka
v. Hungary and the Rule of Law’, 10 Hague Journal on the Rule of Law (2018) 1, 83,
104. On the function of Article 6 ECHR as a safeguard for the rule of law through
protection of judicial independence, see R. A. Lawson, ‘Protecting the Independence of
the Judiciary: Possibilities and Limits of the European Convention on Human Rights’,
Journal of the Brazilian Institute of Human Rights (forthcoming).
116 GoJIL 9 (2018) 1, Special Ed. Holterhus, 109-141
“[d]emocracies do not become Nazi countries in one day. Evil
progresses cunningly, with a minority operating, as it were, to
remove the levers of control… It is necessary to intervene before
it is too late. A conscience must exist somewhere which will sound
the alarm to the minds of a nation, menaced by this progressive
corruption, to war[n] them of the peril and to show them that they
are progressing down a long road which leads far, sometimes even
to Buchenwald or Dachau.”23
When reading this powerful statement, the reader cannot help but feel
the strong imprint that totalitarian rule had left upon the drafters, and their
commitment to install a “conscience to sound the alarm” when totalitarianism
threatened to emerge and overthrow the rule of law. Moreover, the drafters were
keenly aware that this threat comes from within, contemplating as they did
that “what we must fear today is not the seizure of power by totalitarianism by
means of violence, but rather that totalitarianism will attempt to put itself in
power by pseudo-legitimate means”.24 In light of such fears, the drafters not only
envisioned a Court25 to represent the conscience of Europe, but also attempted to
limit any risk of the Convention being used by anti-democratic and totalitarian
forces to overthrow the rule of law, and install a repressive government. To this
eect, they included two specic provisions in the Convention.
Articles 17 and 18 respectively aim to ensure, rst, that individuals and
groups cannot invoke the Convention with the aim of overthrowing democracy
and destroying fundamental rights, and second, that State authorities cannot
themselves act in contravention with the rule of law by restricting human rights
23 French representative Pierre-Henri Teitgen in a speech for the Consultative Assembly in
1949, in Council of Europe, Collected Edition of the ‘Travaux Préparatoires’ of the ECHR,
Vol. I. (1975), 266, 292 [TP of the ECHR, Vol. I]. See also E. Bates, e Evolution
of the European Convention on Human Rights. From its Inception to the Creation of a
Permanent Court of Human Rights (2010), 44; and A. C. Buyse, ‘Contested Contours.
e Limits of the Freedom of Expression from an Abuse of Rights Perspective – Articles
10 and 17 ECHR’, in E. Brems & J.H. Gerards, Shaping Rights in the ECHR. e Role of
the European Court of Human Rights in Determining the Scope of Human Rights (2009),
183.
24 L. Benvenuti, in Council of Europe, Collected Edition of the ‘Travaux Préparatoires’ of the
ECHR, Vol. II. (19 75), 136.
25 And before it, the European Commission of Human Rights.
117
e Dawn of Article 18 ECHR
for ulterior purposes. e rst aim is embodied by Article 17,26 which militates
against any abusive reliance on ECHR rights with the aim of destroying the
rights enshrined in the Convention.27 us, Article 17 provides a line of defense
where groups or individuals attempt to invoke rights such as the freedom of
expression and association in order to set up extremist parties propagating
Nazism,28 communism,29 or other extremist ideologies that cannot coexist with
the rights enshrined in the ECHR,30 or propose a racist regime that allows such
rights only for certain groups and not others.31 Democratic European States
therefore do not need to stand idly by where such groups rise to prominence – if
they choose to forbid and criminally prosecute such parties and their adherents,
they can successfully invoke Article 17 to deect claims of a violation of the
freedom of expression or association. Article 17 in this respect is therefore part of
the toolbox of the militant democracy.32 e second aim is embodied by Article
18, which is discussed in more detail in the next section.
26 As the focus of this contribution is Article 18, I provide only a very cursory and incomplete
overview of Article 17. For a comprehensive and in-depth analysis, see P. E. de Morree,
Rights and Wrongs Under the ECHR. e Prohibition of Abuse of Rights in Article 17 of the
European Convention on Human Rights (2016).
27 In the words of the Court, “It cannot be ruled out that a person or group of persons will
rely on the rights enshrined in the Convention or its Protocols in order to attempt to
derive therefrom the right to conduct what amounts in practice to activities intended to
destroy the rights or freedoms set forth in the Convention; any such destruction would
put an end to democracy”, Ždanoka v. Latvia [GC], ECtHR Application No. 58278/00,
Judgment of 16 March 2006, para. 99. See also Perinçek v. Switzerland [GC], ECtHR
Application No. 27510/08, Judgment of 15 October 2015, para. 113.
28 E.g. W.P. and Others v. Poland (dec.), ECtHR Application No. 42264/98, Decision of 2
September 2004.
29 European Commission of Human Rights, German Communist Party v. Germany (1957),
Application No. 250/57, Documents and Decisions (1959), 222-225.
30 E.g. Belkacem v. Belgium (dec.), ECtHR Application No. 34367/14, Decision of 27
June 2017, para. 27-37, concerning the leader of Sharia4Belgium who propagated the
enactment of Sharia law in Belgium.
31 E.g. European Commission of Human Rights, Glimmerveen and Hagenbeek v.
eNetherlands (dec.) (1979), Application No. 8348/78 and 8406/78, DR 18, 187.
32 I leave aside here the possibility for Article 17 to be invoked against the State, which is
rarely assessed on the merits. For an example pertaining to the right to derogate from
the Convention, see e Greek Case – Denmark, Norway, Sweden and the Netherlands v.
Greece (Part I), Application No. 3321/67 et al., Commission Report of 5 November 1969,
para. 222-225. In this case a number of States brought a case against Greece, who under
the “Colonels regime” had derogated from the Convention. In the end, the Commission
did not nd it necessary to rule on the Article 17 issue, as it had already concluded that
118 GoJIL 9 (2018) 1, Special Ed. Holterhus, 109-141
III. Article 18 and the Rule of Law
Article 18, contrary to the primary function of Article 17, protects against
abuse by the State – therefore giving expression to the reality that it is often State
authorities themselves who pose the biggest risk to democracy and the rule of
law.33 at Article 18 has a major role to play in safeguarding the rule of law is
not self-evident from a cursory reading of the provision, and I will therefore use
the remainder of this section to esh out further the linkages between the two,
drawing on the travaux préparatoires as well as arguments in separate opinions
and legal scholarship. Broadly speaking, the arguments rely on a combination of
a textual, systematic and purposive interpretation of Article 18.34
Article 18 provides that “the restrictions permitted under this Convention
to the said rights shall not be applied for any purpose other than those for which
they have been prescribed”. is somewhat awkwardly phrased provision has
led a largely dormant life, and it was not until 2004 that it was found to be
violated for the rst time.35 is very modest role in the Convention system has
everything to do with the text of the provision, that appears to do no more than
reiterate what is already clear from the limitation clauses accompanying many
ECHR provisions:36 in order for a restriction of a right to be justiable, it must
pursue a legitimate aim. Most rights already provide that restrictions can only
be justied when pursuing certain legitimate purposes, such as national security,
public safety, to prevent disorder and crime, or the protection of the rights and
freedoms of others.37 Article 18 has on this basis often been interpreted to be
no more than a limitation on limitations,38 lacking autonomous meaning and
the material conditions for a lawful derogation had not been met. Further on Article 17
and militant democracies, see De Morree, supra note 26.
33 For an excellent elaboration, see Keller & Heri, supra note 9, 2-3.
34 ese are accepted principles of treaty interpretation both in public international law,
and under the ECHR. See Art. 31-32 Vienna Convention on the Law of Treaties, and e.g.
Golder v. UK, supra note 3, para. 29.
35 Gusinskiy v. Russia, ECtHR Application No. 70276/01, Judgment of 19 May 2004
[Gusinskiy v. Russia]. For a Commission nding of a violation in 1993, later overturned
by the Court, see Quinn v. France, ECtHR Application No. 18580/91, Judgment of 22
Ma rch 1995.
36 Compare W. A. Schabas, e European Convention on Human Rights: A Commentary
(2015), 623.
37 See e.g. § 2 of Articles 8, 9, 10, 11 ECHR, as well as Article 4 § 3 of Protocol No. 2
ECHR.
38 E.g. P. Santolaya, ‘Limiting Restrictions on Rights. Art. 18 ECHR (A Generic Limit
on Limits According to Purpose)’, in P. Santolaya & J. G. Roca (eds.), Europe of Rights:
ACompendium on the European Convention on Human Rights (2 012), 527.
119
e Dawn of Article 18 ECHR
fullling a merely “auxiliary” function.39 Nevertheless, as Bill Schabas rightly
notes in his Commentary, Article 18 ECHR is a unique provision, that has
no counterpart in other human rights treaties.40 To illustrate, whereas the
Universal Declaration of Human Rights41 and the EU Charter of Fundamental
Rights,42 contain provisions limiting restrictions to certain aims, these have to
be distinguished from the ECHR system because they are general limitation
clauses. e Universal Declaration and the EU Charter do not set out limitations
per right, but contain just one clause that allows for the limitation of the entire
catalogue of rights. In lieu of specic limitation clauses, a provision restricting
the aims in pursuance of which rights may be limited serves an obvious purpose:
preventing the arbitrary interference with, and hollowing-out of, rights. e
inclusion of such a clause in the ECHR, already providing as it does for specic
limitation clauses that prescribe an exhaustive list of aims, on the contrary,
would be devoid of any meaning if interpreted in this way. Granted, this in itself
cannot provide the basis for a wholly autonomous meaning for Article 18, but it
is, at the very least, a rst indication that it was included for some other purpose.
In construing the object and purpose of Article 18 within the Convention
system, most judges (in separate opinions to judgments) and scholars have relied
on the travaux préparatoires of Article 18. ey indeed provide a useful tool
to discern what the drafters had in mind for the provision.43 Keller and Heri
write that the drafters meant for the Court “to prune undemocratic buds from
the legal systems of Member States before these can bloom and bear the fruit
that represents a larger problem”.44 is nding is supported by the drafters’
consideration that the purpose of restricting the aims that can justify limiting
39 Satzger, Zimmermann & Eibach, ‘Art 18. Part 1’, supra note 9, 105-109.
40 Schabas, supra note 36, 623.
41 Art. 29(2) of the UDHR provides: “In the exercise of his rights and freedoms, everyone
shall be subject only to such limitations as are determined by law solely for the purpose of
securing due recognition and respect for the rights and freedoms of others and of meeting
the just requirements of morality, public order and the general welfare in a democratic
society.”
42 Art. 52(1) of the EU Charter provides: “Any limitation on the exercise of the rights and
freedoms recognised by this Charter must be provided for by law and respect the essence
of those rights and freedoms. Subject to the principle of proportionality, limitations
may be made only if they are necessary and genuinely meet objectives of general interest
recognised by the Union or the need to protect the rights and freedoms of others.”
43 ough some authors nd the travaux pertaining to Article 18 generally unhelpful, see
C. Ovey & R. C. A. White, Jacobs & White: e European Convention on Human Rights
(2006), 437 and Santolaya, supra note 38, 527.
44 Keller & Heri, supra note 9, 3.
120 GoJIL 9 (2018) 1, Special Ed. Holterhus, 109-141
rights, is “to ensure that no State shall in fact aim at suppressing the guaranteed
freedoms, by means of minor measures which, while made with the pretext of
organising the exercise of these freedoms on its territory, or of safeguarding the
letter of the law, have the opposite eect”.45 e drafters, in other words, feared
that States would at some point attempt to limit human rights merely to bolster
their own position of power at the expense of the political opposition.46 Further,
they were wary of States doing so under a guise of lawfulness, under the pretext
of some legitimate aim – in other words that States would limit rights under
false pretenses, serving ulterior purposes or hidden agendas. Ultimately, Article
18 was included to counter such tendencies.
When States limit human rights under false pretenses, this violates the
rule of law. ey must conform to the law and act within the connes of the
law, and do so in good faith. When they not only contravene the law, but do
so deliberately and they in fact attempt to camouage this – arguing that a
restriction of a right pursues a legitimate purpose, when in fact the State pursued
another, hidden aim – this exacerbates the mere violation of the law, and strikes
at the heart of the rule of law. After all, the State authorities in this situation
maliciously attempt to circumvent the principle of legality and the restrictions
the law places on their actions, thereby engaging in a classic form of abuse
of power.47 is is the more so because any eective control of State power
is rendered obsolete where the real motivation and purpose behind repressive
action is kept secret. In short, this entails a clear disregard of core tenets of the
rule of law, legal certainty and non-arbitrariness.
Where States start using the law merely as camouage for the raw exercise
and abuse of power, and thereby prevent individuals from mounting any
meaningful legal defense, the rule of law is in clear danger. Article 18 of the
ECHR is geared toward situations where States limit rights for ulterior, hidden
purposes, and therefore provides a warning signal par excellence of rule of law
backsliding. It is the hallmark of totalitarianism to misuse the State apparatus
and criminal justice system to suppress the opposition, civil society and other
voices of dissent. When nding a violation of Article 18, the Court therefore truly
acts as the conscience of Europe, sounding the alarm the drafters envisioned in
45 French representative Pierre-Henri Teitgen in a speech to the Consultative Assembly on 7
September 1949, in TP of the ECHR, Vol. I, supra note 23, 276.
46 Ibid.
47 See G. Palombella, ‘e Abuse of Rights and the Rule of Law’, in A. Sajó (ed.), Abuse: e
Dark Side of Fundamental Rights (2006), 6, explaining the concept of abuse as follows:
“e ‘abuse’ perspective highlights the unlawfulness of infringing an interest on the part
of the holder of a right or a power who acts in apparent compliance with a legal rule.”
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1949.48 At least, in theory – practice shows that the Court’s case-law showcases
a number of obstacles to fullling this function.
C. e Defective Application of Article 18 in the Court’s
Case-Law
I. Introduction
us far – or at least until very recently – Article 18’s potential as an early
warning system for threats to the rule of law has not been realized. is section
explains why that has been the case, structuring the discussion of relevant case-
law around shortcomings in relation to the eective protection of the rule of law,
rather than presenting a chronological case-by-case oversight.49 e discussion in
this light focuses successively on the very limited scope of application of Article
18 (C.II.), and issues pertaining to the burden and standard of proof (C.III.).
Together, these issues have limited the application of Article 18 to such an
extent, that the Court’s function as warden for the rule of law has been rendered
largely illusory. e following section, section D., then goes on to address
recent developments marked by the landmark Grand Chamber judgment in
Merabishvili v. Georgia, as this has to an extent changed the outlook.
II. An Extremely Narrow Scope of Application
Article 18 pertains to the restrictions of other Convention rights, meaning
it can only be applied in conjunction with other Articles of the Convention and
has an accessory nature.50 It is, however, autonomous in the sense that it can be
violated even though the right in conjunction with which it was invoked, was
not violated separately.51 Further, a claim under Article 18 is compatible ratione
48 See also Satzger, Zimmermann & Eibach, ‘Art. 18 Part 1’, supra note 9, 112.
49 is has been done before, see ibid., and Keller & Heri, supra note 9; for an extensive
historical overview of the case-law, see Merabishvili v. Georgia [GC], supra note 14, para.
265-281. For a comprehensive discussion of the case-law, see also Directorate of the
Jurisconsult & F. Tan, ‘Guide on Article 18 of the European Convention on Human
Rights, Strasbourg: European Court of Human Rights’ (2018), available at https://www.
echr.coe.int/Documents/Guide_Art_18_ENG.pdf (last visited 12 December 2018).
50 For the rst time, see European Commission of Human Rights, Kamma v. the Netherlands
(1974), Application No. 4771/71, DR 1, 4; see further e.g. Gusinskiy v. Russia, supra note
35, para. 73.
51 See supra note 50, and for the rst application of this in practice, see Merabishvili v.
Georgia [GC], supra note 14.
122 GoJIL 9 (2018) 1, Special Ed. Holterhus, 109-141
materiae with the Convention only where it is invoked in conjunction with a
qualied right, i.e a right that is subject to restrictions.52 As the subject-matter of
Article 18 is a situation where State authorities pursued ulterior purposes under
the guise of an aim prescribed by the Convention, ill-treatment in contravention
with Article 3 for example falls outside the scope of Article 18, as interferences
with that right can never be justied, no matter the aim pursued.53
So far so good. A closer look at the case-law, however, reveals that the
scope of application of Article 18 is limited in two primary ways that prevent
it from being an eective tool for the protection of the rule of law. e rst
addressed here is the Court’s practice of declaring it “unnecessary to examine”
an Article 18 claim in a variety of situations. is has eectively limited the
application of Article 18, to the point where Judge Keller has argued that it is
deprived of any scope of application whatsoever.54 e second issue addressed is
that the Court has thus far found violations of Article 18 in conjunction with
the right to liberty only – eectively limiting its supervision to situations of
abusive pre-trial detention. As I will argue below, this insuciently reects the
often broader context of a fully politically motivated criminal prosecution.
e Court’s examination, or lack thereof, of complaints under Article
18 of the Convention has thus far been unpredictable. Early cases, up until as
recently as 2004, were hardly ever examined on the merits and were most often
dismissed for being unsubstantiated.55 Although the case-law shifted when in
2004 the Court for the rst time found a violation of Article 18 in the Gusinskiy
judgment,56 the Court’s willingness to assess Article 18 complaints on the merits
has remained haphazard and inconsistent. First, in a number of cases the Court
has found it unnecessary to examine the Article 18 complaint despite ostensibly
falling w ithin its purview. By way of example, a number of predominantly Russian
cases have featured opposition leaders who have been detained for relatively short
periods of time, which prevented them from attending opposition manifestations
and protests. In these cases, despite nding in its examination under Article 11
that “the applicant’s arrest and administrative detention had [had] the eect of
preventing and discouraging him and others from participating in protest rallies
52 Merabishvili v Georgia, supra note 50, para. 287.
53 European Commission of Human Rights, Timurtaş v. Turkey, Application No. 23531/94,
DR 31, para. 329.
54 Writing both on the bench and academically. See the Partly Dissenting Opinion of Judge
Keller appended to Kasparov v. Russia, supra note 11 and Keller & Heri, supra note 9, 9.
55 See the Court’s exposé of its case-law in Merabishvili v. Georgia [GC], supra note 14,
para.265-269.
56 Gusinskiy v. Russia, supra note 35.
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and actively engaging in opposition politics”, the Court nevertheless held it was
not necessary to examine the (same) issue under Article 18.57 is, moreover,
is just an example of a broader practice.58 Second, the Court’s practice shows a
similar approach in cases where it found no violation of other Convention rights,
declaring that as those rights had not been violated, Article 18 was not violated
either.59 When taking these two practices together, no scope of application for
Article 18 eectively remains: when the right in conjunction with which it was
invoked was not violated, neither is Article 18; when the right in conjunction
with which it was invoked was violated, there is no separate issue under Article
18, even if the case pertains to ulterior purposes. is practice undercuts Article
18’s autonomous meaning and importance for the protection of the rule of law.
Numerous judges have acknowledged this problem, with Judge Kūris even
writing a 8,500 word dissent to outline the various ways the Court has avoided
examining Article 18 on the merits.60
When despite the issue outlined above an application is examined on the
merits, another obstacle arises in cases where applicants allege their prosecution
as a whole has been politically motivated, in contravention with the rule of law.
us far, the Court has found violations of Article 18 only in conjunction with
57 Nemtsov v. Russia, ECtHR Application No. 1774/11, Judgment of 31 July 2014, para.129;
Navalnyy and Yashin v. Russia, ECtHR Application No. 76204/11, Judgment of 4
December 2014, para. 116 [Navalnyy and Yashin v. Russia]; Frumkin v. Russia, ECtHR
Application No. 74568/12, Judgment of 5 January 2016, para. 172; Yaroslav Belousov v.
Russia, ECtHR Application Nos. 2653/13 and 60980/14, Judgment of 4 October 2016,
para. 188; Kasparov and Others v. Russia (No. 2), ECtHR Application No. 51988/07,
Judgment of 13 December 2016, para. 55 [Kasparov and Others (No. 2)].
58 E.g. Bozano v. France, ECtHR Application No. 9990/82, Judgment of 18 December
1986, para. 61. See also the case-law references in Merabishvili v. Georgia [GC], supra note
14, para. 296.
59 E.g. Engel and Others v. the Netherlands, ECtHR Application No. 5100/71 et al., Judgment
of 8 June 1976, para. 104; Handyside v. the United Kingdom, ECtHR Application No.
5493/72, Judgment of 7 December 1976, para. 52.
60 Concurring Opinion of Judge Kūris appended to Tchankotadze v. Georgia, supra note 13.
124 GoJIL 9 (2018) 1, Special Ed. Holterhus, 109-141
the right to liberty,61 and save for one or two exceptions62 all cases where the
Court has scrutinized a complaint of misuse of power have similarly related
to Article 5. Although pre-trial detention on trumped up charges is certainly
an extreme misapplication of power that strikes at the heart of the rule of law,
especially when also coinciding with certain important events such as political
manifestations or even elections, a nding to that eect nevertheless fails to
address the potential political motivation of the criminal proceedings as a whole.
at would require applying Article 18 in conjunction with the right to a fair
trial enshrined in Article 6, but the Court’s case-law has thus far not left much
scope for such a complaint. e reasons for this are twofold.
Firstly, the Court has not yet made up its mind when it comes to the
question whether Article 6 is subject to restrictions and lends itself to be applied
in conjunction with Article 18.63 e Court recently acknowledged its case-
law on this issue has been inconsistent and that the question therefore remains
open.64 is is a signicant nding, as on two earlier occasions the Court had
declared complaints under Article 18 in conjunction with Article 6 incompatible
ratione materiae with the Convention – reasoning that as Article 6 is not subject
to restrictions, it cannot be restricted for ulterior purposes.65 In both these cases
three judges dissented on this point, and in the recent case of Ilgar Mammadov
(No. 2) v. Azerbaijan the Court unanimously held the questions remains open
– with a majority of four judges expressing their preference of referring the case
61 Gusinskiy v. Russia, supra note 35, para. 78; Cebotari v. Moldova, ECtHR Application
No. 35615/06, Judgment of 13 November 2007, para. 53; Lutsenko v. Ukraine, ECtHR
Application No. 6492/11, Judgment of 3 July 2012, para. 110 [Lutsenko v. Ukraine];
Tymoshenko v. Ukraine, ECtHR Application No. 49872/11, 30 April 2013, para. 301
[Tymoshenko v. Ukraine]; Ilgar Mammadov v. Azerbaijan, supra note 11, para. 144; Rasul
Jafarov v. Azerbaijan, supra note 10, para. 163; Merabishvili v. Georgia [GC], supra note
14, para. 354; Mammadli v. Azerbaijan, ECtHR Application No 47145/14, Judgment of
19 April 2018, para. 105.
62 OAO Neftyanaya Kompaniya Yukos v. Russia, ECtHR Application No. 14902/04,
Judgment of 20 September 2011, para. 663-666 [OAO Neftyanaya Kompaniya Yukos
v. Russia]. Khodorkovskiy and Lebedev v. Russia, supra note 6, likely also falls in this
category, though the Court in that case oddly did not specify in conjunction with which
provision(s) it applied Art. 18.
63 Similarly, see F. Tan, ‘Case Note: Ilgar Mammadov (No. 2)’ (2018), 19 European Human
Rights Cases 2018/28, 74-79.
64 Ilgar Mammadov v. Azerbaijan (No. 2), ECtHR Application No. 919/15, Judgment of 16
November 2017, para. 261 [Ilgar Mammadov v. Azerbaijan (No. 2)].
65 Navalnyy and Otserov v. Russia, supra note 7, para. 129-130; Navalnyy v. Russia, ECtHR
Application No. 101/15, Judgment of 17 October 2017, para. 88 [Navalnyy v. Russia
October 2017].
125
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to the Grand Chamber to remedy the inconsistencies in the case-law, but opting
not to as the applicant in this case was still in detention, and the case therefore
did not allow for a delay of justice of at least a year.66
Secondly, where applicants’ complaints as to the political motivation
of the criminal proceedings lodged against them have not been declared
inadmissible, they have met with an insurmountable burden of proof, rendering
it practically impossible to prove their case. is is addressed further in the
following section.
III. An Insurmountable Burden and Standard of Proof
Applicants have struggled to prove their allegations of a violation of Article
18. As the Court made clear on many occasions, it applied in this context “a very
exacting standard of proof” and “[a]s a consequence, there are only few cases
where a breach of that Convention provision has been found”.67 e Court’s
treatment of Article 18 as a provision sui generis has made it dicult to rely on
it successfully, which has to do with a number of peculiarities. Primary factors
have been the one-sided division of the burden of proof, and the “very exacting
standard of proof” the Court has until recently used in Article 18 cases.68
Another less-explored issue pertains to the distinction in the standards applied
by the Court depending on whether the case before it concerned a general
allegation of political motivation of the criminal prosecution as a whole – in a
sense almost amounting to an in abstracto accusation of bad faith on the part
of the State – and those cases showcasing certain distinguishable features, which
permitted zooming in on one specic episode in pre-trial detention indicating a
misuse of power by the authorities. ese issues are addressed below.
1. e Burden of Proof
A primary reason many applicants have failed to satisfy the Court that
their prosecution, detention or restriction of rights had been ordered for ulterior
purposes, has been the Court’s insistence that it is for the applicant to show
convincingly that the real aim of the authorities was not the same as that
66 Joint Concurring Opinion of Judges Nußberger, Tsotsoria, O’Leary and Mits, Ilgar
Mammadov v. Azerbaijan (No. 2), supra note 64, .
67 Amongst others Khodorkovskiy v. Russia, ECtHR Application No. 5829/04, Judgment of
31 May 2011, 66, para. 256 [Khodorkovskiy v. Russia]; Tymoshenko v. Ukraine, supra note
61, 66, para. 295; Tchankotadze v. Georgia, supra note 13, 27, para. 113.
68 See the literature cited supra, note 9.
126 GoJIL 9 (2018) 1, Special Ed. Holterhus, 109-141
proclaimed.69 Indeed, in what it later referred to as a “foundational statement”,
the Court held in Khodorkovskiy that
“[...] the whole structure of the Convention rests on the general
assumption that public authorities in the member States act in good
faith. Indeed, any public policy or an individual measure may have
a ‘hidden agenda’, and the presumption of good faith is rebuttable.
However, an applicant alleging that his rights and freedoms were
limited for an improper reason must convincingly show that the real
aim of the authorities was not the same as that proclaimed (or as
can be reasonably inferred from the context). A mere suspicion that
the authorities used their powers for some other purpose than those
dened in the Convention is not sucient to prove that Article 18
was breached.”70
e presumption of good faith on the part of the authorities therefore put
the burden of proof rmly and irreversibly upon the applicant. In Khodorkovskiy
and Lebedev v. Russia the Court rmly rejected the applicants’ claim that the
burden ought to shift where they made out a prima facie case or “arguable
claim” of a violation of Article 18.71 is meant that although the applicants
had submitted various views by international NGOs on the targeted destruction
of their oil company by the Russian State, and cited foreign courts who had
declined to extradite individuals to Russia in this case for fear of politically
motivated proceedings, Russia was not required to bring forth any evidence or
arguments to debunk the applicants’ claims. After all, the assumption of good
faith, similar to a presumption of innocence, was on its side.
69 Khodorkovskiy v. Russia, supra note 67, 66, para. 255; Lutsenko v. Ukraine, supra note 61,
39, para. 106; Tymoshenko v. Ukraine, supra note 61, 66, para. 294; Khodorkovskiy and
Lebedev v. Russia, supra note 6, 194, para. 899; Ilgar Mammadov v. Azerbaijan, supra note
11, 32, para. 137; Rasul Jafarov v. Azerbaijan, supra note 10, 37, para. 153; Tchankotadze
v. Georgia, supra note 13, 26, para. 113.
70 Khodorkovskiy v. Russia, supra note 67, 66, para. 255.
71 Khodorkovskiy and Lebedev v. Russia, supra note 6, 195, para. 903. e Court considered
“that even where the appearances speak in favour of the applicant’s claim of improper
motives, the burden of proof must remain with him or her. It conrms its position
in Khodorkovskiy v. Russia, supra note 67 that the applicant alleging bad faith of the
authorities must ‘convincingly show’ that their actions were driven by improper motives.
us, the standard of proof in such cases is high.”
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e Dawn of Article 18 ECHR
Successfully addressing politically motivated proceedings has thus been
rendered increasingly dicult. It should be borne in mind that the allegation
is that the purpose pursued by the authorities in detaining or prosecuting
individuals was not the one ocially proclaimed, that there was a hidden agenda,
an ulterior and covert aim – in other words that the authorities had acted in bad
faith. is is not unlike the concept of intent or mens rea in criminal law, it
being for the applicant to show the purpose pursued by the authorities, which
is incredibly dicult to attain if the authorities are in no way held to refute
allegations by the applicant.72 Although there is a case to be made for the heavy
burden placed on applicants given the exceptional severity of nding that a State
has acted in bad faith,73 requiring applicants to provide all the evidence of the
subjective aims of State authorities has prevented Article 18 from fullling its
potential as a warning for rule of law backsliding. Practice has shown the nigh
impossibility for applicants to prove their case,74 which is exacerbated further by
the evidentiary requirements set by the Court, to which I turn below.
2. e Standard and Means of Proof
In addition to the requirement that applicants prove their allegation
in full, the Court also emphasized the (very) high standard of proof in cases
concerning Article 18,75 and consistently applied a “very exacting standard of
proof ”.76 is high standard of proof meant that for an applicant to rebut the
presumption of good faith, he had to “convincingly show” that the real aim of
the authorities was not the same as that proclaimed (or as can be reasonably
72 See also Satzger, Zimmermann & Eibach, ‘Art. 18 Part 2’, supra note 9, 253.
73 Ibid., 253; See also C. Foster, Science and the Precautionary Principle in International Courts
and Tribunals. Expert Evidence, Burden of Proof and Finality (2011), 189-190, noting that
“there is a presumption that all states are committed to the good of the community
and all act consistently with the applicable norms (‘presumption of compliance’ as it is
known)”.
74 Before the Grand Chamber judgment in Merabishvili v. Georgia [GC], supra note 14, the
Court had only found a total of six violations of Article 18.
75 Khodorkovskiy and Lebedev v. Russia, supra note 6, 195, para. 903; Khodorkovskiy v. Russia,
supra note 67, 67, para. 260.
76 Khodorkovskiy and Lebedev v. Russia, supra note 6, 194, para. 899 and 66, para. 256; see
further Lutsenko v. Ukraine, supra note 61, 39, para. 107; Dochnal v. Poland, ECtHR
Application No. 31622/07, Judgment of 18 September 2012, 18, para. 112 [Dochnal
v. Poland]; Tymoshenko v. Ukraine, supra note 61, 66, para. 295; Ilgar Mammadov v.
Azerbaijan, supra note 11, 33, para. 138; Rasul Jafarov v. Azerbaijan, supra note 10, 37,
para. 154; Tchankotadze v. Georgia, supra note 13, 26, para. 113.
128 GoJIL 9 (2018) 1, Special Ed. Holterhus, 109-141
inferred from the context). In this regard, a “mere suspicion” the authorities
acted in bad faith and pursued improper motives was not sucient, “no matter
how arguable that suspicion may be”.77 e Court in this context reasoned that
as the prosecution of anyone in a high political position will necessarily have
far-reaching political consequences, from which political opponents and others
might directly or indirectly benet, this could always lead to suspicions that
the prosecution was politically motivated. As the Court held, however, “high
political status does not grant immunity”.78
Adding further to the burden on the applicant, the Court applied special
evidentiary standards in Article 18 cases. It found for instance that domestic
court ndings in extradition procedures to the eect that prosecutions were
politically motivated, were insucient in light of the very high standard of
proof applied by the Court.79 Further, in a number of cases the Court even
required “incontrovertible and direct proof” of the ulterior purpose.80 As State
authorities limiting individuals’ rights under false pretenses and in pursuit of a
hidden agenda do not normally leave such evidence lying around, and since the
applicant in obtaining such evidence is completely reliant on the authorities, this
has eectively presented a bar to applicants successfully pleading a case before
the Court.81 In other cases the Court was more willing to assess circumstantial
evidence,82 but the Court never explained on what basis it decided whether
77 Tchankotadze v. Georgia, supra note 13, 27, para. 114.
78 Khodorkovskiy v. Russia, supra note 67, 67, para. 258.
79 Ibid., 67, para. 260; referenced with approval in Khodorkovskiy and Lebedev v. Russia,
supra note 6, 195, para. 900.
80 Khodorkovskiy v. Russia, supra note 67, 67, para. 260; Dochnal v. Poland, supra note 76,
19, para. 116; Nastase v. Romania, ECtHR Application No. 80563/12, Decision of 18
November 2014, 21, para. 109 [Nastase v. Romania]; OAO Neftyanaya Kompaniya Yukos
v. Russia, supra note 62, 132, para. 663; Bîrsan v. Romania, ECtHR Application No.
79917/13, Decision of 2 February 2016, para. 73.
81 See also Keller & Heri, supra note 9, 8-9; P. Leach, ‘Georgia: Strasbourg’s Scrutiny of
the Misuse of Power’ (5 December 2017), available at www.opendemocracy.net/od-
russia/philip-leach/georgia-strasbourgs-scrutiny-of-the-misuse-of-power (last visited 12
December 2018), who describes this as the “smoking gun”.
82 Such as in the case of Rasul Jafarov v. Azerbaijan, where the nding of a violation could
even be said to have been based solely on contextual factors: the Court found that the
applicant’s arrest and detention were part of a larger campaign to “crack down on human
rights defenders in Azerbaijan”, basing itself on (1) “the increasingly harsh and restrictive
legislative regulation of NGO activity and funding”; (2) the narrative of high-ranking
ocials and pro-government media to the eect that NGOs and their leaders (including
the applicant) were foreign agents and traitors; and (3) the fact that several notable human
rights activists, who had also cooperated with international organisations protecting
129
e Dawn of Article 18 ECHR
direct evidence was required, or whether circumstantial evidence suced.
Judging from the large number of separate opinions addressing this issue, it may
have been a matter of which judges were on the bench in a specic case.83 ese
separate opinions address the diculties for applicants to nd direct evidence
of the purposes pursued by the authorities, and tellingly, in no case where the
Court applied this high evidentiary requirement did it nd a violation. is
again shows the diculties in bringing successful claims of bad faith rule of law
meddling before the Court.
3. What Must Be Proven
A nal point that has prevented applicants’ hopes of proving a breach of
Article 18 from materializing, was the lack of clarity regarding what it was they
needed to prove. In other words, what does it mean where Article 18 prohibits
restrictions being applied “for any other purpose than that for which it has been
prescribed”? e above discussion illustrates that the Court in essence required
proof of bad faith on the part of the authorities, in other words, applicants had to
1) rebut the assumption of good faith on the part of the authorities, and 2) prove
that the authorities had moreover been driven by improper motives, showing
their bad faith. e Court, however, employed two dierent formulations of
what bad faith entails.
First, the overarching standard entailed “that the real aim of the
authorities was not the same as that proclaimed (or as can be reasonably inferred
from the context)”.84 In other words, the applicants had to show that despite
human rights, had been similarly arrested. Rasul Jafarov v. Azerbaijan, supra note 10,
39-40, para. 158-163.
83 See the Joint Concurring Opinion of Judges Jungwiert, Nußberger and Potocki,
appended to Tymoshenko v. Ukraine, supra note 61; Partly Dissenting Opinion of Judge
Tsotsoria, appended to Georgia v. Russia (I) [GC], ECtHR Application No. 13255/07,
Judgment of 3 July 2014; Concurring Opinion of Judge Pinto de Albuquerque, appended
to Navalnyy and Yashin v. Russia, supra note 57; Joint Partly Dissenting Opinion of Judges
Nicolaou, Keller and Dedov, appended to Navalnyy and Otserov v. Russia, supra note
7; Joint Concurring Opinion of Judges Sajó, Tsotsoria and Pinto de Albuquerque and
Concurring Opinion by Judge Kūris, appended to Tchankotadze v. Georgia, supra note
13; Partly Dissenting Opinion of Judge Keller, appended to Kasparov v. Russia, supra note
11; Partly Dissenting Opinion of Judge Keller, appended to Kasparov and Others (No. 2),
supra note 57; and Joint Partly Dissenting Opinion of Judges Lopez Guerra, Keller and
Pastor Vilanova, appended to Navalnyy v. Russia February 2017, supra not e 15.
84 Lutsenko v. Ukraine, supra note 61, 39, para. 106; Tymoshenko v. Ukraine, supra note 61,
66, para. 294; Khodorkovskiy and Lebedev v. Russia, supra note 6, 194, para. 899; Ilgar
Mammadov v. Azerbaijan, supra note 11, 32, para. 137; Rasul Jafarov v. Azerbaijan, supra
130 GoJIL 9 (2018) 1, Special Ed. Holterhus, 109-141
the authorities’ reliance on legitimate grounds for restricting their rights, they
in reality acted for ulterior purposes and sought to advance a hidden agenda.
e Azeri cases Ilgar Mammadov and Rasul Jafarov best illustrate how this pans
out for cases relating to a deprivation of liberty. In these cases, an opposition
politician and a human rights-defender, respectively, had been remanded in
pre-trial detention on charges for which the Court could discern no reasonable
suspicion, which led to violations of Article 5.85 Examining the complaints under
Article 18, the Court then found that whereas the nding that there had been
no reasonable suspicion undermined the assumption of good faith on the part
of the authorities, this was not sucient for nding a violation of Article 18.86
is required further evidence, showing that the authorities had moreover been
driven by improper motives, and in these cases such proof of bad faith indeed
owed from various contextual factors.87 Although extremely exacting, there
have therefore been cases where applicants were able to meet the standards as set
by the Court.
In a number of other cases, however, the Court on top of its high standard
of proof raised the bar for applicants yet further. In these cases, the Court did
not only require them to “convincingly show that the real aim of the authorities
was not the same as that proclaimed (or as can be reasonably inferred from the
context)”, but they had to moreover prove “that the whole legal machinery of
the respondent State […] was ab initio misused, that from the beginning to the
end the authorities were acting with bad faith and in blatant disregard of the
Convention”.88 No applicant has succeeded in meeting this standard, leading
a number of judges to qualify it as “prohibitively high”.89 Aside from critiques
note 10, 37, para. 153. In the cases pertaining to full political motivation, the Court also
refers to this standard, but afterwards formulates the much more demanding standard
discussed immediately below.
85 Ilgar Mammadov v. Azerbaijan, supra note 11, 24, para. 100; Rasul Jafarov v. Azerbaijan,
supra note 10, 31-33, para. 130-133.
86 Ilgar Mammadov v. Azerbaijan, supra note 11, 34, para. 141, and Rasul Jafarov v.
Azerbaijan, supra note 10, 39, para. 157.
87 Ilgar Mammadov v. Azerbaijan, supra note 11, 34-35, para. 142-144 and Rasul Jafarov v.
Azerbaijan, supra note 10, 39-40, 158-163.
88 Khodorkovskiy v. Russia, supra note 67, 66, 67, para. 255, 260 [spelling error corrected];
Khodorkovskiy and Lebedev v. Russia, supra note 6, 169, para. 905; Dochnal v. Poland,
supra note 76, 18, para. 115 (in a slightly modied way); Nastase v. Romania, supra note
80, 21, para. 109; Tchankotadze v. Georgia, supra note 13, 27, para. 114.
89 Joint Concurring Opinion of Judges Sajó, Tsotsoria and Pinto de Albuquerque, appended
to Tchankotadze v. Georgia, supra note 13, 34, para. 7.
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on the standard as such, a clear explanation of when the Court applies which
standard has proved elusive.
In my view, an explanation is perhaps best derived from what was at stake
in the case at hand. In cases where applicants alleged in general terms that they
had become the victims of political persecution, without furnishing this claim
with case-specic evidence, the Court has applied the practically unattainable
standard that, from the beginning to the end, the authorities must be shown to
have been acting with bad faith and in blatant disregard of the Convention.90 In
cases, however, pertaining to a specic measure or where a specic episode was
at stake – either because the applicant had formulated a more narrow complaint
or because the Court could itself distinguish this episode from the case as a
whole – the somewhat less stringent standard has been employed.91
By way of illustration, in the Ukrainian cases Lutsenko and Tymoshenko,
although the applicants alleged that the criminal proceedings against them as
a whole had been politically motivated, the Court observed “distinguishable
features” or “specic features” of the case, allowing it “to look into the matter
separately from the more general context of politically motivated prosecution of
the opposition leader”.92 In both cases it found that the pre-trial detention had
been ordered for reasons not permitted by Article 5, basing itself on the written
reasoning accompanying the detention orders – from which it was clear that the
authorities’ aim had been to punish the applicants for their communications
with the media and perceived contemptuous behavior.93 By limiting the case
in this way to the arrest of the applicants, the Court was able to steer clear of
the question of whether these were instances of political persecution full stop,
which of course was the more sensitive as well as simply more complicated issue.
Understandable as that may be and as was discussed above, by rendering it
practically impossible to prove allegations of political persecution, the Court
has limited Article 18’s utility in safeguarding the rule of law. Judges Jungwiert,
Nußberger and Potocki noted this in their Joint Concurring Opinion to the case
of Tymoshenko, setting out “that the reasoning of the majority does not address
the applicant’s main complaint, which concerns the link between human rights
90 See the case law cited supra note 88.
91 Coming to a similar conclusion, see Satzger, Zimmermann & Eibach, ‘Art. 18 Part 2’,
supra note 9, 249-252. ey have the impression that the Court distinguishes between
“rst and second degree violations”.
92 Lutsenko v. Ukraine, supra note 61, 39, para. 108; Tymoshenko v. Ukraine, supra note 61,
67, para. 298.
93 Lutsenko v. Ukraine, supra note 61, 40, para. 109 and Tymoshenko v. Ukraine, supra note
61, 67, para. 299-300.
132 GoJIL 9 (2018) 1, Special Ed. Holterhus, 109-141
violations and democracy, namely that her detention has been used by the
authorities to exclude her from political life and to prevent her standing in the
parliamentary elections”.94 Despite the extreme seriousness of the ndings in
these cases, therefore, they still do not address the real heart of the issue.
IV. Résumé
Section B. I. concluded that Article 18 addresses a particularly malicious
situation of rule of law circumvention by State authorities, because it is aimed
at addressing situations where the State restricts individual rights under false
pretenses. Assessing the case-law discussed above in light of the drafters’ ambition
of creating a resounding alarm where totalitarian tendencies threaten the rule
of law, leads to a somewhat ambiguous outlook. On the one hand, the scope
of the provision has been drawn too narrowly, and the threshold for proving a
violation has been too high. is has led to a very limited role for Article 18, and
it had up until the Merabishvili case only been found to be violated a total of six
times.95 On the other hand, this rarity has added to the special stigma associated
with a violation,96 and from this perspective, a nding of a violation of Article
18 in conjunction with another Convention provision has surely had added
value as compared to the mere violation of a substantive right alone, enhancing
the nding. Article 18 violations have in this respect constituted qualied
violations, carrying a special stigma and conveying a strong message, which can
be associated with the sounding of the alarm envisioned by the drafters.
Nevertheless, the practical hurdles in the case-law have downgraded
Article 18 to a largely idle provision, as either the Court has not addressed
complaints at all, or set the threshold for proving a violation so high that a
nding of a violation has been largely impossible.97 Moreover, it is precisely the
most pertinent cases, where criminal proceedings as a whole were politically
motivated, that Article 18 is either not applied, or the evidentiary standard is
94 Joint Concurring Opinion of Judges Jungwiert, Nußberger and Potocki, appended to
Tymoshenko v. Ukraine, supra note 61, 69.
95 See the case-law cited supra note 61.
96 Compare Leach, supra note 81, where he argues that an Article 18 violation ought to
be taken very seriously as it is a very rare occurrence. See also Satzger, Zimmermann &
Eibach, ‘Art. 18 Part 2’, supra note 9, 253, where they argue that the “special weight” of
Article 18 convictions could be diluted when arrived at too easily.
97 Compare Keller & Heri, supra note 9, 9, arguing that the Azeri cases have showcased a
potential lowering of the threshold.
133
e Dawn of Article 18 ECHR
raised even further. is means that the provision must, on balance, be seen as
largely ineective in protecting the rule of law.
e following section assesses whether this outlook changed when the
Merabishvili Grand Chamber judgment was handed down in November 2017.
D. A New Dawn for Article 18? Merabishvili v. Georgia
and Beyond
Against the background of the unsatisfactory and inconsistent line in the
case-law, many judges have appended separate opinions to Article 18 cases to
express their discontent, and the few scholarly contributions on the topic have
been equally critical. It was therefore not a question of if, but when a case would
come before the Grand Chamber. In the end it was the case of former Georgian
Minister for the Interior and Prime-Minster Merabishvili, which was referred
to the Grand Chamber after a Chamber had unanimously found a violation of
Article 18 in conjunction with Article 5 in 2016.98 e Grand Chamber, taking
note of the criticisms of the previous case-law, formulated a fresh take on Article
18 and in a closely contended decision held that Georgia had violated Article 18,
by nine votes to eight.99 In the present section, this new judgment is put to the
test: does it manage to better realize the rule of law protection and the alarm
function Article 18 was designed for?
By way of brief introduction: Merabishvili was not a low-prole case. It
pertained to a former Head of Government who alleged that he had become the
victim of a political prosecution, and the case was moreover linked with some
other highly sensitive issues in Georgian politics. Mr. Merabishvili was arrested
for numerous oences, amongst which abuse of power, shortly after leaving oce
due to losing the elections in 2012. He was held in pre-trial detention for almost
seven months, when one day he was removed from his cell in the dead of night,
and questioned by two high-ranked ocials on the death of a former Prime-
Minister and crimes allegedly committed by the former President.100 He was
moreover oered to have the charges against him dropped should he cooperate,
but was threatened with worsening prison conditions should he decline. He
98 Merabishvili v. Georgia, ECtHR Application No. 72508/13, Judgment of 14 June 2016
[Merabishvili v. Georgia].
99 Merabishvili v. Georgia [GC], supra note 14.
100 Ibid., see 79-83, para. 333-350 for the Court’s considerations as to the applicant’s removal
from his cell. All facts in the case were contested by the State, but the Court found the
applicant’s statements to be proven.
134 GoJIL 9 (2018) 1, Special Ed. Holterhus, 109-141
chose the latter, and in Strasbourg he alleged that the incident showed that the
authorities’ purpose in remanding him in pre-trial detention had not been the
allegations against him, but rather had served ulterior, hidden, motives, namely
to remove him from the political scene and to gather information in unrelated
cases. e potential rule of law implications then, were clear; the stage was set,
but the case-law up until 2017 left recourse to Article 18 dubious at best. How
did the Grand Chamber proceed?
I. Two Steps Forward…
As I argued extensively above, an eective interpretation of Article 18
requires a widening of its scope, and even more so a clear delineation of its
autonomous function as a rule of law safeguard. e Grand Chamber takes up
the gauntlet in this respect. By setting out more clearly the purpose of Article 18
and emphasizing its application even if other rights have not been violated, it sets
out the margins for Article 18’s operation. Moreover, it seems to do away with
the “not necessary to examine”-approach by nding that ulterior purpose claims
must be addressed when they are a “fundamental aspect” of a case,101 which will
presumably be so at least in cases of politically motivated rights restrictions.102
In setting out the role of Article 18 within the Convention system, the
Court nds the added value of the provision in its detournement de pouvoir-
function, explicitly forbidding States from misusing their power to restrict
rights.103 is entails a move-away from the focus on bad faith on the part of
the authorities as such, and a stronger emphasis on the question of whether the
authorities have pursued any ulterior purposes – purposes that do not provide
a lawful basis for restricting rights, and that were not the ones ocially cited.
e Court however recognizes that often State authorities pursue more than one
purpose, and that when States pursue both legitimate and illegitimate (ulterior)
purposes, Article 18 may be violated even if substantive rights are not. By thus
carving out a distinct territory for Article 18, I would expect it to be applied
more often, and thereby to become a more feasible avenue for redress when
States suppress individual rights in pursuance of a hidden agenda. Whether this
101 Ibid., 69, para. 291.
102 Nevertheless, only the future will tell how the Court interprets the “fundamental aspect”-
criterion. It has formulated the same criterion in Article 14 (non-discrimination) cases, but
application has proved unpredictable. Explaining the complex applicability of Article14
ECHR, see J.H. Gerards, ‘Commentaar op art. 14 EVRM’, Sdu Commentaar EVRM,
C.1.2 (online, last revised on 15 June 2015).
103 Ibid., 67, para. 283 and 74, 306. It does so with reference to the travaux préparatoires.
135
e Dawn of Article 18 ECHR
also goes for wholly politically motivated criminal proceedings (as opposed to
e.g. restrictions of liberty) remains to be seen, as Merabishvili did not address
the question of whether Article 18 can be applied in conjunction with the right
to a fair trial under Article 6. is issue therefore remains, for now, undecided.
When it comes to issues of proof, the Grand Chamber – noting the earlier
inconsistencies – rmly moves away from previous case-law. It signicantly
lowers the applicable standard of proof and no longer adheres to the one-sided
allocation of the burden of proof, thereby greatly increasing the practicability
of Article 18 and applicants’ chances of actually convincing the Court that
a violation has taken place. e Court held that there is no reason to apply
any special approach to proof as compared to other Convention provisions,104
meaning all issues regarding burden of proof,105 standard of proof,106 and types
of evidence107 are normalized and therefore no longer raise issues particular to
Article 18.
Undoubtedly it will remain cha llenging for applicants to suciently furnish
claims of improperly motivated restrictions of their rights, as the knowledge of
what has driven the authorities remains within the exclusive purview of the
authorities themselves, but at least the overly restrictive demands have been
downscaled.108 Furthermore, because the Court emphasizes the importance
of the authorities’ response to allegations and also references the relevance
of circumstantial evidence such as reports from NGOs and international
observers to shed light on the facts, it appears large steps have been made to
remedy the evidentiary problems outlined above.109 is is not to say of course
that all criticisms are hereby stied, as the Court’s adoption of a standard of
“beyond reasonable doubt”, despite its long pedigree,110 is itself not free from
104 Merabishvili v. Georgia [GC], supra note 14, 74, para. 310.
105 Ibid., 74, para. 311.
106 Ibid., 75, para. 314.
107 Ibid., 76, para. 316-317.
108 See also C. Heri, ‘Merabishvili, Mammadov and Targeted Criminal Proceedings:
Recent Developments under Article 18 ECHR’ (15 December 2017), available at htt ps://
strasbourgobservers.com/2017/12/15/merabishvili-mammadov-and-targeted-criminal-
proceedings-recent-developments-under-article-18-echr/ (last visited 12 December 2018).
109 Further on this, see J. Mačkić, ‘Case Note: Merabishvili v. Georgia’ (2018), 19 European
Human Rights Cases 2018/41, 109-121.
110 See Ireland v. e United Kingdom, ECtHR Application No. 5310/71, Judgment of 18
January 1978, 38, para. 161.
136 GoJIL 9 (2018) 1, Special Ed. Holterhus, 109-141
controversy.111 As this point is a more general critique of the Court’s approach to
evidence as such, I leave it aside.
II. …And One Step Back?
In Merabishvili, the Grand Chamber clearly takes two leaps forward. In
clearing up the scope of application and downsca ling the evidentiary requirements,
the practicability of Article 18 is sure to increase. e most ferocious critiques on
the old case-law had moreover been targeted at precisely those two issues. en
why was the Grand Chamber so deeply divided in handing down its judgment?
As was mentioned above, the focus in what must be proven under Article
18 shifts in Merabishvili from bad faith to a more objective assessment of ulterior
purpose. is shift entails two important changes. First, the Court accounts for
the eventuality where authorities pursued multiple aims when restricting rights,
and where they for example detained an individual on a reasonable suspicion of
having committed an oence, but simultaneously served a covert purpose – such
as preventing him from attending a political manifestation or, as was the case
in Merabishvili, to obtain information into unrelated investigations.112 Second,
the Court no longer applies a separate standard for allegations of political
persecution, thereby departing from its previous requirement that the authorities
misused the entirety of their legal machinery from beginning to end in blatant
disregard of the Convention. e Grand Chamber aims to simplify the case-
law by formulating a two-step approach: the examination must rst focus on
whether it can be proven that the authorities pursued an ulterior purpose, and
second, if there was also a legitimate aim, whether the ulterior purpose was
predominant.113 is approach certainly claries what is required, but it also
raises new issues, and indeed the four concurring judges and the eight dissenting
judges all focused their critiques on this point. Early responses to the judgment
similarly target this aspect of the case.114
111 G. Bonello, ‘Evidentiary Rules of the ECHR in Proceedings Relating to Articles 2, 3 and
14 – A Critique’, 2 Inter-American and European Human Rights Journal (2009) 1-2, 66.
112 Merabishvili v. Georgia [GC], supra note 14, 79-84, para. 333-353.
113 Ibid., 74, para. 309.
114 See Leach, supra note 81; B. Çalı, ‘Merabishvili v. Georgia: Has the Mountain Given Birth
to a Mouse?’ (3 December 2017), available at http://verfassungsblog.de/merabishvili-v-
georgia-has-the-mountain-given-birth-to-a-mouse/ (last visited 12 December 2018); Heri
2018, supra note 108. See also F. Tan, ‘Case Note: Merabishvili v. Georgia’ (2018), 19
European Human Rights Cases 2018/41, 109-121.
137
e Dawn of Article 18 ECHR
Zooming in on the new predominant purpose-test, what is clear is that
whenever authorities have pursued both legitimate and illegitimate aims, Article
18 is only violated where the illegitimate aim was predominant. Further, where
a restriction is of a continuing nature such as in the case of detention, if at
any moment in time an ulterior purpose was predominant, this violates Article
18.115 Most enlightening regarding what the new approach entails, is the Court’s
consideration that
“[t]here is a considerable dierence between cases in which the
prescribed purpose was the one that truly actuated the authorities,
though they also wanted to gain some other advantage, and cases in
which the prescribed purpose, while present, was in reality simply
a cover enabling the authorities to attain an extraneous purpose,
which was the overriding focus of their eorts.”116
is approach to Article 18 has attracted fundamental criticisms from the
four concurring judges,117 as well as academic commentators.118 ey argue that
because a restriction will only fall foul of Article 18 if it served a predominantly
illegitimate purpose, the Convention thereby provides legitimacy to States
limiting human rights for ulterior purposes, so long as those purposes were not
predominant. In the words of Başak Çalı, “the plurality of purposes presumption
turns bad faith into a banal state of aairs. It normalises its occurrence so long as
it is not a predominant reason for restricting rights”.119 is was not the majority’s
intention, and in fact the Grand Chamber no longer sees Article 18 as pertaining
only to cases of “bad faith”; its aim seems to have been precisely to normalize
and objectify the provision by moving away from bad faith and towards a more
neutral assessment of purposes.120 From the perspective of the protection of the
rule of law, my concern is therefore not so much that “bad faith” cases will fall
outside of the new approach, but rather that the objectivization brings situations
115 Merabishvili v. Georgia [GC], supra note 14, 74, para. 308 and 83, para. 351.
116 Ibid., para. 303.
117 Joint Concurring Opinion of Judges Yudkivska, Tsotsoria and Vehabović, appended to
Merabishvili v. Georgia [GC], supra note 14, 90, para. 1; Concurring Opinion of Judge
Serghides, appended to Merabishvili v. Georgia [GC], supra note 14, 109, para. 3; Joint
Concurring Opinion of Judges Sajó, Tsotsoria and Pinto de Albuquerque, appended to
Tchankotadze v. Georgia, supra note 13, 33, para 1.
118 Çalı, supra note 114; Heri, supra note 108.
119 Çalı, supra note 114.
120 More extensively, see Tan, supra note 114.
138 GoJIL 9 (2018) 1, Special Ed. Holterhus, 109-141
under Article 18’s scope that do not pertain to core bad faith cases, and therefore
have less bearing on the rule of law. is may dilute the nding of a violation of
Article 18, as it will be more mundane and not every violation will be equally
serious. Of course, the concurring judges’ concerns cannot be discounted, and
a normalization of bad faith human rights restrictions is a bleak outlook, but
it would appear to me that the risk is greater that the normalization of Article
18 makes violations of the provision lose their edge, as an extremely serious,
qualied breach that signies a complete disregard for the rule of law. is
would put the added value of the provision at risk.
More practical problems also arise under the predominant purpose-test.
First, it will be very dicult for applicants to prove that the ulterior purpose
pursued by the authorities, was predominant.121 Second, the test for determining
predominance is vague and dicult to apply, as is illustrated by the eight
dissenters who were in fact in favor of introducing the test but disagreed with
the application to the facts of the case. e test as formulated by the Court,
though ambiguous, does provide opportunities for rule of law protection.
Which purpose was predominant in the Grand Chamber’s view depends on all
the circumstances of the case, in addition to which “the Court will have regard
to the nature and degree of reprehensibility of the alleged ulterior purpose, and
bear in mind that the Convention was designed to maintain and promote the
ideals and values of a democratic society governed by the rule of law”.122 at is a
rather indeterminate criterion and appears to take onboard the concurring judges’
criticisms that wherever there was a political aim to a prosecution, this ought to
constitute directly a violation of Article 18. After all, against the background of
maintaining democracy and the rule of law, the purpose of getting rid of political
dissidents seems to me to be on top of the list of reprehensibility. Problematic in
this approach, however, is that how reprehensible the ulterior purpose was seems
to have little or nothing to do with what purpose was predominant – in other
words what purpose drove the authorities to take action. Whereas the criterion
therefore provides very little practical guidance, it does appear to provide room
to nd Article 18 violations more easily in cases where the rule of law is under
threat.
121 Çalı, supra note 114; Heri 2018, supra note 108.
122 Merabishvili v. Georgia [GC], supra note 14, 74, para. 307.
139
e Dawn of Article 18 ECHR
III. Résumé
Reecting on the Merabishvili case, it is a clear landmark case that has
signicantly developed the case-law on Article 18. We are left with one question
though. How did Mr. Merabishvili fare in Strasbourg? e Grand Chamber
considered his account of the facts suciently proven, and nine judges were
equally convinced that the predominant aim of Mr. Merabishvili’s detention
following his removal from his cell had shifted to garnering information for
other proceedings. e Grand Chamber was not satised, however, that the
authorities’ aim in arresting the applicant had been predominantly to remove
him from the political scene. Meanwhile, at the time of writing, Mr. Merabishvili
remains in jail, and Georgian authorities claim the European Court conrmed
he is not a political prisoner.123
State reactions to Article 18 violations have more broadly speaking
been ambivalent. As a clear positive example, the case of former Prime-Minister
Tymoshenko springs to mind. In this case, the Court found that Article 18 had
been violated in conjunction with Article 5 because Tymoshenko’s detention
had been ordered to punish her for perceived contemptuous behavior rather
than for the purpose of the trial against her.124 In a separate case, Tymoshenko
complained that beyond her pre-trial detention, her criminal proceedings as
a whole had been politically motivated. After the Court had decided the rst
case, Ukraine decided to settle the second, admitting it had violated Article
18 in conjunction with Articles 6, 8 and 10.125 In addition to, and in line with
this admission, Ukraine further gave notice to the Committee of Ministers
that Tymoshenko had been released from prison following a parliamentary
resolution.126 e combination of a judicial decision nding a violation of Article
18 and the political supervision by the Committee of Ministers therefore led to
the favorable result of Ukraine both admitting to having had political motives
in prosecuting Tymoshenko, and releasing her from prison.
123 G. Gabekhadze, ‘President Says Ex-Interior Minister’s Rights Were Violated in Prison’
e Messenger Online (10 May 2018), available at http://www.messenger.com.ge/
issues/4137_may_10_2018/4137_margvelashvili.html (last visited 12 December 2018).
124 Tymoshenko v. Ukraine, supra note 61.
125 Tymoshenko v. Ukraine (No. 2), ECtHR Application No. 65656/12, Decision of 16
December 2014 [Tymoshenko v. Ukraine (No. 2)].
126 See the database of the Department for the Execution of Judgments of the ECHR,
HUDOC-EXEC, available at https://hudoc.exec.coe.int/eng#{%22EXECDocument
TypeCollection%22:[%22CEC%22]} (last visted 17 December 2018), Tymoshenko v.
Ukraine, ECtHR Application No. 49872/11.
140 GoJIL 9 (2018) 1, Special Ed. Holterhus, 109-141
On the other side of the spectrum, there is the case of Ilgar Mammadov
v. Azerbaijan. In this case, opposition politician Mammadov had been detained
in order to silence him and punish him for spreading information revealing
that the cause for Azerbaijani riots had been concealed by the authorities –
leading the Court to nd a violation of Article 18 in conjunction with Article 5.
Despite this ruling in 2014, Mammadov has yet to be released. e Committee
of Ministers has continuously kept this case on its agenda,127 calling for his
release but to no avail. e Committee has now for the rst time in history
initiated infringement proceedings, requesting the Court to decide whether
Azerbaijan has given eect to its judgment.128 Meanwhile, two weeks before
the Committee’s decision, the Court decided in Ilgar Mammadov (No. 2) that
Azerbaijan had not only violated Article 18 in conjunction with Article 5, but
had also manifestly failed to provide Mammadov with a fair trial.129 Despite the
dialogue rst at the Court, then at the Committee of Ministers with further
Court proceedings having been brought, and the discussion now owing back
to the Court, there appears to be no clear solution to the Ilgar Mammadov v.
Azerbaijan-saga. is goes to show that even with Article 18’s alarm sounding,
and immense political pressure, the Council of Europe system for rule of law
and human rights protection remains dependent on the good will of States, and
their willingness to comply with binding Court judgments. at, however, is of
course precisely what is at stake in States who no longer strictly adhere to the
rule of law. Whereas a nding of a breach of Article 18 may therefore be a clear
sounding of the alarm for the rule of law, the real litmus test may be in how a
State executes that judgment.
E. Conclusion
Human rights restrictions under false pretenses present a clear danger
to the rule of law, and Article 18 presents a powerful tool to address such
backslides. e European Court has struggled to get a grip on such pernicious
practices, but has shown a willingness to develop its case-law to better deal
with such situations and oer applicants a real chance of addressing these
127 See L. R. Glas, ‘e Committee of Ministers Goes Nuclear: Infringement Proceedings
Against Azerbaijan in the Case of Ilgar Mammadov’ (20 December 2017), available at
https://strasbourgobservers.com/2017/12/20/the-committee-of-ministers-goes-nuclear-
infringement-proceedings-against-azerbaijan-in-the-case-of-ilgar-mammadov/ (last
visited 12 December 2018).
128 Interim Resolution of 7 December 2017, CM/ResDH(2017)429.
129 Ilgar Mammadov v. Azerbaijan (No. 2), supra note 64.
141
e Dawn of Article 18 ECHR
issues. e Grand Chamber case of Merabishvili presents a turning point in
this regard, oering some realistic chance for victims of politically motivated
repression to bring their claims to Strasbourg, and even if applicants remain
in a dicult position to successfully complain of an Article 18 violation given
the authorities’ sole knowledge of their intentions and the diculty of nding
evidence indicating such intentions, dialogue will at least increase as States can
no longer remain passive. Further, the Court’s nding to the eect that it will
address complaints of authorities being driven by ulterior purposes whenever
that complaint constitutes a fundamental aspect of the case, at least in theory
ensures that it will no longer declare serious cases unnecessary to examine. Test
case and the next trial for the Court in this context will be the Grand Chamber
case of Alexei Navalny,130 the Russian opposition leader who is regularly arrested
when he attempts to take part in political manifestations, but whose Article 18
complaints the Court has consistently refused to address.131
Despite the developments in Merabishvili, the case-law under Article
18 remains complex and challenges endure. In particular, the Court will need
to somehow strike a balance between an interpretation that renders Article 18
a realistic avenue for proceedings where the rule of law is at stake, while at the
same time safeguarding its exceptional status as a “qualied violation”. After all,
it may no longer connote the same clear and unequivocal ruling of bad faith –
that “the foundation of trust that normally exists between all signatory States
is shattered”.132 A further threat looming is that States acting in bad faith may
get away with their malicious rights restrictions because it cannot be proved that
their ulterior purpose was “predominant”. Because all information regarding
the authorities’ purposes is necessarily within the exclusive knowledge of the
State, the Court will need to be suciently vigilant in requiring it to furnish the
necessary evidence, or to draw adverse inferences from the State’s unwillingness
to do so. All in all, the Court needs to walk a ne line if Article 18 is to function
as the alarm bell that the drafters envisioned, whilst safeguarding the legitimacy
of its decisions.
130 Navalnyy v. Russia February 2017, supra note 15. A Grand Chamber hearing was held in
Janua r y 2018.
131 See Navalnyy and Yashin v. Russia, supra note 57; Navalnyy and Otserov v. Russia, supra
note 7; Navalnyy v. Russia February 2017, supra note 15; Navalnyy v. Russia Ocotber 2017,
supra note 65.
132 Satzger, Zimmermann & Eibach, ‘Art. 18 Part 2’, supra note 9, 249.
