Abstract
The increasingly litigated Article 18 echr aims at unmasking the ‘hidden agenda’ pursued by states that proclaim to be restricting human rights for legitimate reasons, but in fact do so for an ‘ulterior purpose’. These complaints generate complex evidentiary challenges. This article investigates the evidentiary regime of Article 18 since the delivery of the Grand Chamber Merabishvili v Georgia judgment in 2017. It shows that this regime is composed of a three-legged evidentiary test requiring: (1) that the Article 18 complaint is a fundamental aspect of the case, (2) the identification of an ‘ulterior purpose’, and (3) the predominance of this purpose in the state’s overall motivation. The article argues that this three-stage test is sui generis, despite borrowing elements from evidentiary regimes, both from other Convention provisions and externally, and that it lacks clarity and coherency: facilitating a higher standard of proof for the provision, which largely burdens applicants.
1 Introduction
Article 18 of the European Convention on Human Rights (echr or Convention) has started to assume a prominent role in the field of European human rights law. Although the European Court of Human Rights (ECtHR or Court) only found a violation of the provision for the first time in 2004,1 at the time of writing approximately 60 cases pending before the Court and communicated to states allege its violation.2 Article 18 echr reads: ‘The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed’. The provision aims to prevent states from imposing restrictions on rights and freedoms for ulterior and illegitimate purposes. The provision is not autonomous:3 it must be applied in conjunction with a right or freedom under the echr. However, a violation of that conjunctive provision is not a prerequisite for finding a violation of Article 18.4
Article 18 has gained significant value in the struggle against democratic and rule of law backsliding in the Court’s case law, particularly in the last decade.5 This is because the Court has utilised the provision to identify instances when states have been motivated by a desire to stifle political pluralism6 or silence opposition politicians,7 human rights defenders,8 and judges9 when restricting individual rights and freedoms under the Convention, finding that the state’s actions were actually driven by an illegitimate ulterior purpose. However, the way in which the Court proceeds with identifying ulterior purposes is marred with multi-faceted evidentiary challenges.
The aim of this article is to investigate the clarity and coherency of the evidentiary regime of Article 18. The investigation is normatively pressing due to two lines of pressure which trigger particular tension in Article 18 cases. The first line of pressure flows from the ‘fourth instance doctrine’, which posits that the case facts should normally be accepted by the ECtHR to have been correctly determined by the domestic courts.10 In Article 18 cases, however, domestic courts often act under the influence of ulterior purposes themselves when justifying the restrictions on Convention rights at the domestic level,11 often requiring the ECtHR to reassess the facts. The second line of pressure relates to the political nature of finding Article 18 violations. A complaint under this provision requires the ECtHR to probe the motives of the respondent state and, if it finds a predominant ulterior purpose,12 it effectively assumes the position of ‘naming and shaming’13 that state for having pursued ulterior purposes. Both of these lines of pressure risk provoking strong challenges against the Court’s legitimacy, most notably accusations of the Court leaving the legal realm and entering the political one.14 In an attempt to shield itself from legitimacy related criticisms, the earlier case law of the ECtHR required ‘incontrovertible and direct proof’15 in order to find a violation of Article 18. However, this standard meant that a violation of Article 18 was almost impossible to prove in practice. Against the backdrop of democratic and rule of law backsliding, the provision’s evidentiary regime underwent significant reform in the 2017 Grand Chamber Merabishvili v Georgia judgment.16 The focus of this article is the post-Merabishvili case law of the Court up until the end of 2022.
This article defines an evidentiary regime attached to any Convention right as a constellation of various requirements and notions which guide the Court’s approach to evidence. The Court has a different evidentiary regime for different echr provisions,17 sometimes entailing distinct approaches to notions that are common across all evidentiary regimes under the echr. The Court, for instance, has recognised that its approach to the burden of proof, an evidentiary notion defined as ‘a party’s duty to prove a disputed assertion or charge’,18 is dependent on the Convention right at stake.19 The Court has further held that the level of persuasion required to satisfy the standard of proof, or rather ‘how persuaded’20 the Court must be to reach a conclusion in any given case, is also dependent on the Convention right being assessed.21 When assessing the clarity of the Article 18 evidentiary regime, the article investigates whether the ECtHR offers sufficient guidance as to what exactly is required to prove a violation of the provision. Coherence focuses on the foreseeable application of Article 18’s evidentiary regime across different cases engaging with the provision.
The main argument of this article is two-fold. First, that Article 18’s evidentiary regime is sui generis and, as with other provisions under the Convention,22 features distinct elements. More specifically, Article 18’s sui generis regime borrows a variety of aspects from different sources, including some non-human rights law authorities (for instance, case law of the Court of Justice of the European Union (cjeu) and domestic administrative case law), in its development of three criteria that make up the foundations for Article 18’s evidentiary regime: (1) establishing that the ulterior purpose(s) complaint is a fundamental aspect of the case, (2) establishing an identifiable ulterior purpose, and (3) establishing that the identified ulterior purpose is the predominant purpose behind the restriction.23 Second, that the Court’s interpretation and application of Article 18’s evidentiary regime lacks, in each of these steps, both sufficient clarity and coherence, and is capable of being improved through various adjustments to the Court’s approach to the provision.
This article first delineates, in section 2, the present features of Article 18’s evidentiary regime according to the Court’s own case law, laying out the three-stage test. Section 3 considers the hybrid nature of the sources that the Court has employed to develop this regime, drawing not only from evidentiary notions under other echr provisions, but also, albeit to a more limited extent, case law from domestic courts, the cjeu, and the Inter-American Court of Human Rights (IACtHR). Section 4 examines the Article 18 case law in more detail in order to highlight the lack of clarity and coherency in Article 18’s evidentiary regime and maps out an improved regime for the Court moving forward. Section 5 concludes.
2 Article 18’s Evidentiary Regime: A Three-Legged Test
The leading authority concerning the present evidentiary regime under Article 18 is the 2017 Grand Chamber Merabishvili v Georgia judgment. Merabishvili concerned the pre-trial detention of a prominent Georgian opposition politician and former Prime Minister, Ivane Merabishvili. He successfully complained under Article 18, in conjunction with Article 5(1) echr, that his detention pursued an ulterior purpose, namely the obtention of information unrelated to his prosecution.24 Merabishvili overhauled the narrow understanding of evidentiary requirements under Article 18 across two dimensions.
The first dimension led the Grand Chamber to expressly normalise the standard of proof, meaning ‘how persuaded’25 the Court must be to either shift the burden or reach a conclusion in any given case. This normalisation lowered the standard of proof from ‘incontrovertible and direct proof’26 to ‘beyond reasonable doubt’.27 It cannot be overstated that the ‘beyond reasonable doubt’ standard under the Court’s case law does not correspond to the same named standard in domestic legal systems.28 In the Greek case, the European Commission of Human Rights proclaimed that ‘a reasonable doubt means not a doubt based on a merely theoretical possibility or raised in order to avoid a disagreeable conclusion, but a doubt for which reasons can be drawn from the facts presented.’29 Some scholars argue that in the Strasbourg case law ‘beyond reasonable doubt’ equates to a ‘preponderance of probabilities’ or ‘balance of probabilities’.30 However, the Court has simply asserted that its conception of ‘beyond reasonable doubt’ is not the same as the domestic criminal standard and that ‘such proof can follow from the coexistence of sufficiently strong, clear and concordant inferences or similar unrebutted presumptions of fact.’31 The Court also elected to relieve the applicant of the burden of proof in Merabishvili,32 which previously rested exclusively on the applicant.33 This recalibration of the standard and burden of proof was motivated by the Court’s recognition of the evidentiary difficulties faced by applicants in certain case contexts, particularly in those concerning Article 18.34 The impact of this normalisation is telling when one considers the trajectory of Article 18 violations, with six violations preceding Merabishvili35 and 16 violations in the five years following the judgment.36
The second dimension is how Merabishvili laid the foundations for Article 18’s reformed evidentiary regime by establishing a three-legged test: the fundamental aspect of the case criterion (section 2.1), the identification of an ulterior purpose criterion (section 2.2), and the predominance criterion (section 2.3). Merabishvili provides for the application of the ‘beyond reasonable doubt’ standard to each of these criteria.37 Together, these criteria can be said to make up the three-legged test, as a failure to establish any one of them will lead to a finding of no violation of Article 18.
2.1 The Fundamental-Aspect Criterion
The first criterion developed by Merabishvili in its formulation of the test under Article 18 requires that the Article 18 complaint constitute a fundamental aspect of the case.38 Notwithstanding its establishment of this criterion, Merabishvili neglected to apply the criterion to the case facts and instead merely declared in the abstract that ‘examination of a [Article 18] complaint […] is only warranted if the claim that a restriction has been applied for a purpose not prescribed by the Convention appears to be a fundamental aspect of the case’.39 Three different conceptions of what is required under the fundamental-aspect criterion have, however, emerged in the subsequent Article 18 case law.
The Court’s first conception treats the fundamental-aspect requirement as a distinct criterion that is assessed prior to determining whether an ulterior purpose has been identified. In these cases, the Court appears to deal with the point succinctly and considers that the claim either is40 or is not41 a fundamental aspect of the case, without much material consideration. The Court’s second conception appears to merge the fundamental-aspect criterion with the second criterion (the identification of an ulterior purpose). One case demonstrating this conception is Sabuncu and Others v Turkey,42 which concerned the pre-trial detention of journalists working for a newspaper critical of the Turkish government.43 The ECtHR concluded that there had been a violation of Article 5(1) and Article 10 echr. However, notwithstanding its consideration of a Presidential statement indicative of retaliatory prosecution,44 the Court declined to find a violation of Article 18. Instead, it observed ‘that the elements relied on by the applicants […] do not form a sufficiently homogeneous whole for the Court to find that the applicants’ detention pursued a purpose not prescribed by the Convention and representing a fundamental aspect of the case.’45 This approach, conflating the fundamental-aspect and identification criteria into one criterion, has been replicated in other cases.46 The Court’s third conception, adopted in the Grand Chamber Selahattin Demirtaş v Turkey judgment in 2020, considers the fundamental-aspect criterion prior to determining the admissibility of the Article 18 complaint.47 This approach requires only the claim of an Article 18 violation to appear to represent a fundamental aspect of the case.
2.2 The Identification of an Ulterior Purpose Criterion
The second criterion requires the identification of an ulterior purpose behind the measure restricting the relevant Convention right, or rather proof of an illegitimate aim. In contrast to the first fundamental-aspect criterion, the Grand Chamber in Merabishvili engaged explicitly with this criterion in its assessment of the facts of the case. In doing so, the Court crucially departed from its la main dans le sac, or caught red-handed, approach. Instead, the Court chose to admit and consider contextual evidence, namely multiple prosecutions against political opposition members48 and government public statements about those prosecutions,49 which established ‘bitter political antagonism’50 between the opposition and the ruling party.51 This broadened the Court’s previous conception of ‘evidence in the legal sense’52 that it would consider when examining Article 18 complaints. However, a closer examination of the judgment shows that such contextual evidence did not prove decisive in the Court’s finding of an ulterior purpose. Instead, the finding of an ulterior purpose rested on the Court’s finding of an irregularity in the sequence of the applicant’s detention. The applicant was taken from his cell one night in December 2014, driven to another location to meet with state officials, and threatened with worse detention conditions should he not disclose information unrelated to his criminal prosecution. The most persuasive evidence in establishing such events was the unexplained prompt ‘automatic’ deletion of prison cctv,53 which allowed the Court to conclude that the applicant’s allegations of these events were ‘sufficiently convincing and therefore proven.’54 One of the applicant’s legal representatives has observed that the finding of a violation of Article 18 ‘hinged’55 on the Court finding such events proven.
It is important to distinguish these two apparently distinct streams of contextual evidence, namely ‘broad’ and ‘narrow’, in the Court’s subsequent case law. The 2019 Kavala v Turkey judgment denotes similar distinctions and weighting to Merabishvili. In Kavala, the Court noted, but ultimately dismissed, the broader contextual evidence, namely the increasing pressure on civil society and human rights defenders.56 Instead, it placed considerable emphasis on narrow contextual evidence, especially the nature of the questions put to the applicant, which appeared unrelated to the charges against him,57 and a delay in the time between relevant events and the applicant’s prosecution.58 It is argued here that the ‘broad’ category of contextual evidence should be understood as relating to background information, that is, the facts which inform the general context in which the assessment of the case is to be situated. A notable source of broader contextual evidence gaining prevalence in the Court’s Article 18 case law is the European Commission for Democracy Through Law (the Venice Commission). The Venice Commission is the Council of Europe’s advisory body on constitutional matters, providing guidance in the fields of democracy, human rights, and the rule of law. Its primary output in this regard is the publication of legal opinions on domestic (draft) legislation. The 2020 Grand Chamber Selahattin Demirtaş v Turkey judgment utilised Opinion No 875/201759 to recognise a contextual background of political influence on domestic judicial decisions, particularly concerning the persecution of dissenters.60
In contrast, ‘narrow’ contextual evidence includes evidence that is more proximate to the pertinent facts as alleged, but nevertheless remains indirect. Further examples include the frequency of an applicant’s arrests,61 police conduct in searches concerning the applicant,62 public statements from government ministers concerning the applicant,63 ambiguous or poorly reasoned domestic court reasoning concerning the applicant,64 and the findings of other international courts engaging with the applicant.65
In its approach to the second criterion, the Court has also developed a practice of referring to its own previous judgments against the same respondent state as a means of incorporating contextual evidence into the case it is deliberating. This is most notable in the Article 18 cases against Azerbaijan in which the Court has begun to cite its previous judgments to justify recognising a backdrop of ‘arbitrary arrest and detention of government critics’.66 This exercise also incorporates contextual evidence from earlier respondent state cases that did not engage Article 18.67 This practice should be understood as the ‘internalisation’ of contextual evidence, meaning the internal cataloguing of findings of contextual fact by the Court to justify similar findings in subsequent judgments.
2.3 The Predominance Criterion
The third criterion established by Merabishvili is the ‘predominant purpose test’, according to which Article 18 is only violated if the state’s ulterior purpose constitutes the main purpose behind the relevant restriction. The only indicator in determining predominance offered by the ECtHR is the ‘nature and degree of reprehensibility of the alleged ulterior purpose’ bearing ‘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.’68 The Court incoherently applies this notion of ‘reprehensibility’, reflecting on the reprehensibility of the alleged ulterior purposes to determine predominance in some cases and deferring entirely to its contextual evidence assessment under the second criterion and not considering reprehensibility in others.69
Of note is the Court’s development of a ‘time slicing’70 tool. Relying on its findings that the predominance of a purpose can vary over time,71 the ECtHR has identified predominance of an ulterior purpose in respect of a specific time segment of a case.72 Employment of this tactic allows the Court to zoom in on a particular segment in the chronology of case events to identify a (later) stage where the ulterior purpose becomes predominant. The clearest application of this approach is found in the 2018 Grand Chamber Navalnyy v Russia judgment, where the Court elected to find an Article 18 violation in two of the seven episodes in which the applicant faced infringements of his rights under Articles 5 and 11 echr over a two-year period.73
One crucial observation must be made regarding the predominant purpose test: the Court’s application of the test, in cases evidencing a plurality of purposes, has not yet prevented it from finding a violation of Article 18. In other words, the Court has never identified an ulterior purpose and found it not to be predominant.74
3 Origins of the Three-Legged Test and its Sui Generis Status
Corina Heri has recently hinted at the (semi-)sui generis nature of Article 18 as a substantive provision, identifying notable parallels with, inter alia, Article 30 of the American Convention on Human Rights75 and respective IACtHR jurisprudence.76 Further parallels, as regards to Article 18’s purpose, can be drawn with the administrative law concept of misuse of power and the French equivalent of détournement de pouvoir, considering that the travaux préparatoires to the echr also makes reference to this doctrine.77 In essence, that doctrine prohibits the use of discretionary powers for purposes for which they are not prescribed. The travaux does not, however, provide any indication as to how a violation of Article 18 should be proven. The previous section argued that the evidentiary test under Article 18 consists of three constituent criteria. This section argues that, notwithstanding common ground with other evidentiary regimes, Article 18’s evidentiary regime is unique, borrowing various elements and approaches, apparently from different sources, to form a sui generis test. To substantiate this argument below, this article traces the possible origins of each criterion in turn.
The Court imported the fundamental-aspect criterion from its own discrimination case law,78 without any elaboration or explanation. The Grand Chamber in Merabishvili simply cited the leading cases in the field of its discrimination law under Article 14 echr.79 The significant commonality between Article 18 and Article 14 is their ‘parasitic’ non-autonomous character,80 in that each of these two provisions must be applied in conjunction with a substantive provision under the Convention and may be taken to explain the impetus behind this importation. Such a criterion does not appear to be present in the jurisprudence of domestic courts, the IACtHR, or the cjeu.
In contrast to the first criterion, the exact origin of the Court’s approach to the second criterion is admittedly less clear. The Court cites IACtHR jurisprudence in its relevant international materials section of the Merabishvili judgment,81 which places great weight on contextual evidence when investigating allegations of restrictions on rights pursuing ulterior purposes.82 It further notes, under its comparative materials heading, that the domestic courts that apply the misuse of power doctrine ‘accept as proof of misuse of power the terms of the impugned decision, documents in the file relating to the adoption of that decision, documents created in the course of the judicial‑review proceedings, presumptions of fact, and, more generally, contextual evidence.’83 Although the ECtHR does not identify these domestic courts,84 the doctrine of the misuse of power is recognised in the law across multiple member states of the Council of Europe, including, for example, France, Belgium, Luxembourg, Italy, Netherlands, and Germany.85 The doctrine can also be found, often only implicitly, in the constitutional law of the United Kingdom86 and has been incorporated into the law of the European Union.87 The evidentiary challenges in proving an ulterior purpose are also present in these cases,88 with successful challenges often benefiting from incriminating witness testimony89 or prominent procedural irregularities (i.e., narrow contextual evidence).90
The absence of any express application of cjeu, IACtHR, and domestic court jurisprudence in the Merabishvili judgment reasoning suggests that the recognition of contextual evidence was taken earlier on the Court’s own initiative in its Rasul Jafarov judgment,91 inspired by its own free approach to evidence.92 In this regard, the ECtHR consistently holds that ‘as a general rule […] the Court examines all material before it irrespective of its origin, and because it can, if necessary, obtain material of its own motion.’93 Ultimately, however, references to contextual evidence when determining the pursuit of an ulterior purpose in respect of a state measure are still present in ECtHR as well as cjeu, IACtHR, and domestic court jurisprudence.94
[w]hen faced with a situation in which an authority has pursued both an authorised and an ulterior purpose, [the courts of several High Contracting States] assess which of those purposes was predominant. If they find that the authorised purpose was predominant, they regard the authority’s decision as valid. If, conversely, they find that the ulterior purpose was predominant, they quash the decision as invalid.95
Judge Serghides points out, in his separate opinion critiquing the predominance purpose test in Merabishvili, that the majority judgment fails to identify the domestic courts which adopt a predominance criterion in their own practice.96 Aikaterini Tsampi traces this approach to French administrative law,97 and the same predominance approach has since been developed into EU law, which provides that ‘a measure is only vitiated by misuse of powers if it appears […] to have been taken with the exclusive or main purpose of achieving an end other than that stated’.98 Other domestic jurisdictions continue to grapple with how exactly to address cases engaging a plurality of purposes in misuse of powers cases under administrative law.99 However, the ECtHR’s gloss to the requirement of predominance, indicating that predominance shall depend on the ‘nature and degree of reprehensibility of the alleged ulterior purpose’ bearing ‘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’,100 distinguishes the predominance criterion from these apparent origins.
Read together, the three constituent criteria must be considered as amounting to a sui generis evidentiary test. As a constellation of requirements, the criteria are not replicated anywhere within or outside of the case law of the ECtHR. This novel approach aims to navigate the tensions between expanding the ability to use Article 18 in its future case law and the challenges for doing so against the backdrop of the Court’s established principles concerning deference to national authorities. In the following section, this article investigates whether the three-legged test does so in a clear and coherent way.
4 An Evidentiary Regime Lacking Clarity and Coherency
This section shows that the introduction of the three-legged test suffers from a lack of clarity and coherency, and demonstrates that the ensuing ambiguities and incoherencies within that regime have had the effects of increasing the standard of proof for Article 18 and maintaining the placement of the burden of proof on the applicant in many instances. Merabishvili sought to relieve the applicant of some of the burden of proof101 and normalised the standard of proof to ‘beyond reasonable doubt’.102 The previous la main dans le sac standard, namely ‘incontrovertible and direct proof’,103 required that applicants produce proof that the burglar ‘had left his fingerprints all over the strongbox, doors and other items, including, the crowbar obligingly abandoned at the crime scene, as well as his id and cell phone’.104
Despite the position proclaimed by the Court in Merabishvili, however, the burden of proof is still, for the most part, carried by the applicant in Article 18 cases, and incoherencies in the Court’s evidentiary regime have resulted in a highly variable standard of proof that, at times, returns to the prohibitively high la main dans le sac standard.105 Article 18 should require convincing evidence owing to the provision’s exceptional nature; however, a return to the la main dans le sac standard that wholly rejects contextual evidence is undesirable as it effectively undermines any hope of a violation of Article 18 in practice. This point is demonstrated by the trajectory of the provision’s violations. Mirroring the previous structure, this section addresses the fundamental aspect of the case criterion (section 4.1), the identification of an ulterior purpose criterion (section 4.2), and the predominance criterion (section 4.3) in turn, with a view to identifying the challenges to the clarity and coherency of this test and mapping out an improved regime for the Court to adopt moving forward.
4.1 The Fundamental-Aspect Criterion: A Question of Argument Over Evidence?
The fundamental-aspect criterion initially appeared uncontroversial to academic commentors, who instead targeted their criticism on the third (predominance) criterion of the test.106 However, more recent case law has revealed that this first criterion may undermine the more liberal evidentiary outlook proclaimed by Merabishvili.
Tracing the operation of this criterion to its origins found in the discrimination case law of the ECtHR,107 where it is also shrouded in ambiguity,108 sheds no light on its application under Article 18 and fails to clarify what is required from applicants to satisfy the criterion. Oddný Mjöll Arnadóttir argues that, in the context of Article 14, the fundamental aspect of the case criterion is guided by the severity of the object of discrimination.109 However, any metric of severity under Article 14 is not comparable to Article 18. The very nature of complaints under Article 18, that a state has violated the Convention in bad faith with the aim of undermining rights, poses a serious and systemic threat to the entire standing of the Convention110 and thus always merits material consideration from the Court.
The three conceptions of the fundamental-aspect criterion that have emerged in the Court’s Article 18 case law point to a central challenge of clarity concerning this test: whether the first criterion requires arguments, evidence, or both. The first conception of the fundamental-aspect criterion, dealing with the matter succinctly as a preliminary and distinct issue, suggests that the applicant need not evidence this point separately.111 In practice, this translates to a requirement that applicants simply go beyond ‘copy and pasting’ their arguments concerning the substantive right which they argue Article 18 applies in conjunction with. The second conception, conflating the first two criteria, appears to impose an entirely new (and higher standard) gloss to the ‘beyond reasonable doubt’ standard of proof for Article 18, requiring a ‘sufficiently homogeneous whole’112 of evidence of an ulterior purpose, and has always led to a finding of no Article 18 violation.113 In stark contrast sits the Demirtaş Grand Chamber judgment, which opted to deal with the first criterion as a (pre-)admissibility issue.114 This conception, as with the first conception, suggests this criterion may concern arguments instead of evidence or impose a lower standard of proof, requiring only prima facie evidence, in accordance with admissibility evidentiary rules.115
The multiple incoherent conceptions also produce conflicting indications regarding the burden of proof for the first criterion. The cases applying the first and second conceptions, where the Court considered that the applicant(s) failed to substantiate their complaint(s) under Article 18 and, therefore, refused to find that the Article 18 complaint represented a fundamental aspect of the case,116 indicate that the burden of proof rests on the applicant for the first criterion. The third conception suggests that the burden truly rests on neither party.
The resulting problem from these differing conceptions is ensuing ambiguity on when the Court assesses the fundamental-aspect criterion and what evidence (if any) it requires to be satisfied in this regard. Moreover, and notwithstanding some hope among academic commentators,117 the criterion has done little to absolve the previous shortcoming in the pre-Merabishvili case law that permitted meritorious Article 18 complaints to go unexamined.118 This begs the question: what (if anything) does the importation of the fundamental aspect of the case criterion add to Article 18 doctrine?
Should the fundamental-aspect criterion continue to be employed in Article 18’s evidentiary regime moving forward, the Court should employ its first conception of the criterion. The first conception is more coherent with the Court’s proof normalisation in Merabishvili than the second conception, considering that the latter risks resuscitating the prohibitively high la main dans le sac standard of proof applied by the Court prior to Merabishvili.119 In contrast, the third conception unnecessarily blurs the lines between admissibility and the merits, raising more questions concerning clarity. Pursuing the first conception would require only relevant arguments, and not evidence, to be advanced by applicants and would deal with the matter as a distinct first question, providing the most clarity and largely cohering with Merabishvili.
4.2 The Identification Criterion: Proving Something Exists That is by Definition Hidden?
Turning to the second identification of an ulterior purpose criterion, the contrasting approaches to contextual evidence, both in terms of the way in which the Court evaluates specific types of contextual evidence and the way in which it assesses the totality of evidence, manifests the most incoherencies and permits a higher standard of proof in certain cases.
The Court’s recourse to evidence emanating from the Venice Commission in Article 18 cases highlights worrying incoherencies in the Court’s evaluation of broad contextual evidence. On the one hand, the Grand Chamber in Demirtaş relied on the views of the Venice Commission in Opinion No 875/2017120 to recognise a contextual background of political influence on domestic judicial decisions.121 A similar approach was adopted by the Court in the more recent case of Juszczyszyn v Poland.122 On the other hand sit the Article 18 cases concerning journalists in Turkey, namely Sabuncu,123 Şik,124 and Ahmet Hüsrev Altan.125 All three of these cases fail to make any reference to the Venice Commission’s Opinion No 872/2016,126 which noted the widespread arrests of journalists and ‘mass liquidations of media outlets’.127 The Court’s mixed engagement with the Venice Commission is also evident in cases concerning other Convention rights.128 Considering the common ground between the objectives of Article 18 and the Venice Commission, namely promoting democracy and the rule of law,129 due attention should be afforded to the latter’s reports, particularly when establishing the factual context in which an Article 18 complaint must be assessed.
The Court’s process of ‘internalising’ contextual evidence highlights further incoherencies and even suggests differential treatment between member states. Başak Çalı opines that this process may indicate a lowering of the threshold for finding Article 18 violations against repeat offenders.130 The higher proportion of violations against Azerbaijan, where this process of internalisation is most prevalent,131 strongly supports such a hypothesis. This practice in the Azerbaijani cases has reduced the level of evidence that must be brought before the Court to permit such a contextual finding and lowered the standard of proof for applicants. Conversely, however, this internalisation has preserved contextual findings that were made when the Court was less sympathetic to contextual evidence in Article 18 cases against other states. This is the situation in cases against Russia.132 From a comparative perspective, Russian applicants are left with a higher standard of proof than their Azerbaijani counterparts when seeking to prove an ulterior purpose under Article 18. The Court should, therefore, be careful only to internalise contextual findings that have been made since it reappraised the value of contextual evidence in Merabishvili.133
The Court is not coherent in its approach to narrow contextual evidence when determining the presence of an ulterior purpose. This incoherency is most visible with reference to the Court’s approach to the statements of government figures. On the one hand is the Court’s approach to this type of evidence in Kavala v Turkey.134 President Erdoğan proclaimed that the ‘terrorists’ behind the Gezi park protests included Mr Kavala, explicitly naming the applicant in the second of two relevant speeches.135 Noting the correlation between these political speeches and the wording of the charges against the applicant, as well as the time between the two, the Court appears to have ascribed considerable weight to these speeches in its cumulative assessment of the evidence before concluding that an ulterior purpose had been pursued.136 On the other hand sit the cases of Sabuncu and Şik, where the Court considered that a statement from President Erdoğan that the authors of a critical article would ‘pay dearly’137 was ‘not directed against the applicants themselves but rather against the [applicant’s] newspaper Cumhuriyet as a whole’.138 In contrast to Kavala, the Court elected to disregard the value of such statements.
A second notable issue in the Court’s approach to determining whether an ulterior purpose has been proven to the ‘beyond reasonable doubt’ standard is how it evaluates the totality of evidence. The Court appears to maintain that it generally adopts a holistic approach, assessing all the evidence ‘as a whole’.139 A closer reading of certain Article 18 judgments, however, suggests that the Court is not always loyal to such an approach, in some cases evaluating each piece of evidence indicating an ulterior purpose in isolation.140 Indeed, the Court continues to reject any material consideration of ‘broad’ contextual evidence in selected cases.141 It must not be forgotten that the strength of contextual evidence rests in its subtle corroboration and, by its very nature, requires a holistic assessment. The effect of an isolated view approach is that it places the ‘beyond reasonable doubt’ standard outside the reach of the applicant in practice. Too often, the Court appears to continue to search for a ‘manifest irregularity’142 when determining the presence of an ulterior purpose. This position sits in tension with the reality, recognised by the Court itself, that ‘improper reasons cannot always be proven by pointing to a particularly inculpatory piece of evidence which clearly reveals an actual reason.’143 More of an emphasis should be placed on the holistic evaluation of all (contextual) evidence together, so that the second criterion’s standard of proof does not present an insurmountable barrier to the recognition of an Article 18 violation.
It would be more consistent with the spirit of Article 18 to allow a prima facie showing and burden shifting. If the applicant can make a prima facie showing that there are elements of the detention or judgment that are incomprehensible, flagrantly in breach of the Convention or arbitrary and apparently related to political aims or impermissible private ambitions (for example extortion for private gain), then the burden should shift to the Government to prove that their reasons were legitimate.145
This position also finds academic support146 and has been employed in respect of other echr rights.147
The majority of the Court are yet to expressly endorse this approach. However, a different strand of Article 18 cases from Sabuncu, Şik, and Ahmet Hüsrev Altan148 suggest a warming to this approach. Of note here is the inaugural Article 18 violation, found in Gusinskiy v Russia.149 A hidden agenda in this case was proven by the presence of a written agreement, signed by the applicant and the Communications Minister, which provided for the termination of the applicant’s criminal prosecution on the condition of the sale of his media company to a state entity.150 It is based on this that a violation of Article 18, in conjunction with Article 5, was found in this inaugural case. Notably, the Court emphasised the Government’s failure to refute any of the evidence advanced by the applicant.151 A close reading of this judgment thus suggests that the Court was in practice, albeit not explicitly and on the basis of very compelling evidence, shifting the burden of proof from the applicant to the Government. Moreover, the Court has implicitly shifted the burden of proof onto the state in respect of specific facts relevant for determining the factual context in Article 18 cases, the most notable example being the exclusive persecution of opposition mp s in Turkey.152
It is unclear whether the reluctance to endorse a shifting mechanism for the burden of proof for the second criterion stems from the infancy of Article 18’s development in the case law or some other reason. A likely concern, on the part of the Court, is that this would not correlate with the severity of a finding that a state has acted in bad faith. The result of such resistance is that applicants still appear to carry the burden of proof when identifying an ulterior purpose, notwithstanding the apparent relaxation in Merabishvili.
Most critically, when further developing its Article 18 doctrine, the Court must ensure that its approach to both broad and narrow contextual evidence under the second criterion coheres with Merabishvili. In doing so, the Court must be attentive to reliable and credible sources of relevant evidence, most notably the Venice Commission and political statements, and adopt a holistic evidential assessment when determining the existence of an ulterior purpose. Failure to do so will only preserve, or even exacerbate, the lack of clarity in the way in which the Court will weigh contextual evidence and result in more incoherencies in the case law. A more emboldened approach to the second criterion for the Court, although not mutually exclusive from appropriately weighing contextual evidence, would be to explicitly endorse a shifting mechanism for the burden of proof under Article 18. Such an approach would prove particularly valuable in cases against member states that benefit from less attention from sources of contextual evidence, namely ‘international observers, non-governmental organisations or the media’.153
4.3 The Predominance Criterion: A ‘Money Laundering’ Risk?
Turning to the third predominance criterion, existing academic criticisms of this criterion centre on the idea that the predominant purpose test risks having a ‘money-laundering’ effect, disguising a measure as pursuing a legitimate purpose when it is, in reality, pursuing an illegitimate one: provided that a measure’s motivations are less than 50% illegitimate, there shall be no violation of Article 18154 and anti-democratic practice(s) would be normalised.155 It is worth noting here that Jean-Marie Aubry partly attributes the decline in the use of the misuse of power doctrine in French administrative law to the development of such a test, leading domestic judges to actively search for legitimate purposes in an effort to justify an administrative measure.156 Such a risk could be greatly exacerbated in the context of Article 18, where the independence of the national judiciary is compromised in the respondent state.
More practical criticism has targeted the ambiguity of the term ‘predominant’. The Court’s indicator of ‘reprehensibility’ provides little clarification, as a purpose’s reprehensibility and its predominance may be entirely unrelated in practice.157 Tobias Mortier has cogently argued that the notion of ‘reprehensibility’ may be viewed as, inter alia, an ‘impact assessment’ of ‘how damaging the [alleged] hidden aim potentially is for the key values of a democratic society’.158 He goes onto advocate for ‘reprehensibility’ to be redeployed as a threshold device as part of the fundamental-aspect criterion and for predominance to be determined based on a weighing of the contextual evidence considered under the second identification criterion.159 This may contribute to legal certainty, but the former proposal risks undermining Article 18’s prospects for expansion to categories of applicants that are not always central in the Court’s conception of a democratic society, most notably migrants.160 Criticism of the predominance criterion has not been expressed by academics only. The joint concurring opinion of Judges Yudkivska, Tsotsoria, and Vehabović in Merabishvili labels the predominance criterion as ‘highly problematic’,161 ‘ambiguous’,162 and a ‘dramatic step backwards’.163
The Court responded to some of these criticisms, or rather sidestepped them, with the development of its ‘time-slicing’ approach.164 However, ‘time slicing’ does not cohere with the consideration of the general context approach principally advocated for in Merabishvili.165 There may also be credence to the criticism that ‘time-slicing’ risks watering down the finding of an Article 18 violation. That is to say that it only condemns a state for a certain segment of behaviour in what should arguably be understood as an abuse of power throughout. For instance, the failure by the Court to recognise an ulterior purpose in respect of all instances of persecution of the applicant in the 2018 Grand Chamber Navalnyy judgment166 partially legitimised some anti-democratic practices adopted by Russia. Ultimately, however, the application of ‘time-slicing’ also lowers the standard of proof and permits the remedies that can follow from a violation.167 It does so by requiring that predominance only be established for a single time segment in the sequence of events, rather than throughout the entire chronology of the case.
The Court has yet to find an ulterior purpose to exist and not be predominant. Unsurprisingly, states are yet to argue that they have pursued an ulterior purpose, but that it was not predominant in their motivation to restrict rights. Such an argument would in theory be possible and absolve the state of a violation of Article 18, but a situation in which a state would make such an admission is improbable. These realities make it difficult to decisively argue that the burden of proof for the predominance criterion rests on one party. Until the criterion is materially contested between the parties, it is not possible to determine the distribution of the burden of proof.
Should the Court continue to apply ‘reprehensibility’ in the context of the predominance criterion, and decline to repeal or redeploy it, it must flesh out its understanding of ‘reprehensibility’, dispelling any interpretation of predominance in terms of a percentage. This would involve judgments spelling out in more detail exactly how the relevant purpose poses a risk to the Court’s conception of a democratic society and how exactly this weighs into an assessment of predominance. The further advantage in this approach would be added legitimacy for the use of Article 18 by emphasising the Court’s role in safeguarding these values,168 as well as minimising the theoretical ‘money-laundering’ risk and leaving the door open for Article 18’s potential expansion.
5 Conclusion
This article argued that the post-Merabishvili evidentiary regime under Article 18 is sui generis with its unique constellation of a three-legged test. Although this article was able to trace some comparative influence, based on sources both internal and external to the echr, it showed that this three-legged test is unique in the way it combines and applies the three criteria. This novel test, however, continues to leave what exactly is required by the Court in terms of evidence for an Article 18 violation to be proven unclear. This lack of clarity has provoked incoherency in the Court’s case law post-Merabishvili.
Most notably, the article has shown that the first fundamental aspect of the case criterion lacks any material clarity in its meaning or positioning in the context of Article 18 and has identified worrying incoherencies in the Court’s own application of this criterion. This article has underscored the ensuing difficulties in proving the second criterion, requiring the establishment of an identifiable ulterior purpose (the ‘hidden agenda’). The Court’s continued incoherent approach, in its assessment of the totality of evidence and the conflation of two apparently distinct criteria, has been shown to further undermine Merabishvili’s normalisation of the standard and burden of proof. A continued reluctance by the Court to embrace a holistic approach to (contextual) evidence risks reviving the higher standard of proof that once applied to the provision.169
The existing Article 18 literature has offered strong criticisms of the third predominance criterion.170 This article, however, showed that in practice the Court is yet to find that an ulterior purpose exists and not deem it predominant in its post-Merabishvili case law. This finding should not be taken to entirely dismiss the theoretical criticisms of the predominance criterion, including the risk that it can ‘money launder’ nefarious state limitations on rights into legitimate limitations on rights. However, a closer reading of Article 18 case law shows that the fundamental-aspect and the identification of an ulterior purpose criteria also merit critical attention and clarification.
The Court’s development of Article 18 has endured a ‘thorny beginning’171 and Merabishvili, despite its intentions to do so, has not fully clarified Article 18’s evidentiary regime. The sui generis three-legged test aimed to bring clarity to the Court’s approach to evidence, but borrowing from distant evidentiary frameworks also opens the present regime to risks of cross-contamination in addition to the benefits of cross-fertilisation. Moving forward, the Court must confirm the substance and boundaries of its three apparent criteria and better delineate what is required in respect of each of these. In doing so, the Court should require only relevant arguments and not evidence for the first criterion, adopt a holistic approach to all (contextual) evidence and explicitly recognise the possibility of a shifting burden of proof under the second criterion, and recalibrate the third criterion to better articulate what it means by predominance.
Acknowledgments
This article has received funding from the European Union’s Horizon 2020 research and innovation programme under the European Research Council (erc-AdG-2018-834044). This article stems from a paper that I presented at the ‘Evidence and Proof in the Proceedings Before the European Court of Human Rights’ Webinar hosted by the dissect project at Ghent University on 5 July 2021. I would foremost like to express sincere gratitude for the feedback from Professor Başak Çalı and Professor Marie-Bénédicte Dembour, without which this article would never have attained its present form. Special thanks must also go to the two anonymous reviewers, Dr Grażyna Baranowska, Professor Cathryn Costello, and to all colleagues at the Centre for Fundamental Rights. All mistakes remain my own.
Gusinskiy v Russia 70276/01 (ECtHR, 19 May 2004).
See, most recently, Kezerashvili v Georgia 11027/22 (ECtHR, communicated case).
Merabishvili v Georgia [gc] 72508/13 (ECtHR, 28 November 2017) para 287.
Ibid para 288.
See, for example, C Heri, ‘Loyalty, Subsidiarity, and Article 18 echr: How the ECtHR Deals with Mala Fide Limitations of Rights’ (2020) 1 European Convention on Human Rights Law Review 25; F Tan, ‘The Dawn of Article 18 echr: A Safeguard Against European Rule of Law Backsliding?’ 9 (2018) 1 Goettingen Journal of International Law 109; A Tsampi, ‘The New Doctrine on Misuse of Power Under Article 18 echr: Is it About the System of Contre-Pouvoirs Within the State After All?’ (2020) 38(2) Netherlands Quarterly of Human Rights 134.
Navalnyy v Russia [gc] 29580/12 (ECtHR, 15 November 2018) paras 174–175; Navalnyy v Russia (No 2) 43734/14 (ECtHR, 9 April 2019) para 98; Selahattin Demirtaş v Turkey (No 2) [gc] 14305/17 (ECtHR, 22 December 2020) para 437.
See, for example, Selahattin Demirtaş (No 2) (n 6).
See, for example, Rasul Jafarov v Azerbaijan 69981/14 (ECtHR, 17 March 2016).
See, for example, Miroslava Todorova v Bulgaria 40072/13 (ECtHR, 19 October 2021).
For a more detailed overview, see J Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primacy in the European Convention on Human Rights (Martinus Nijhoff Publishers 2009) 257–276. See also T Stirner, The Procedural Law Governing Facts and Evidence in International Human Rights Proceedings: Developing a Contextualized Approach to Address Recurring Problems in the Context of Facts and Evidence (Brill Nijhoff 2021) 81–97.
See, for example, Juszczyszyn v Poland 35599/20 (ECtHR, 6 October 2022); Selahattin Demirtaş (No 2) (n 6).
Merabishvili (n 3) para 305.
L Helfer, ‘Populism and International Human Rights Law Institutions’, in Human Rights in a Time of Populism: Challenges and Responses, G Neuman (ed), (Cambridge University Press 2020) 218, 229.
A Sajó, Ruling by Cheating: Governance in Illiberal Democracy (Cambridge University Press 2021) 298. See also H Satzger and others, ‘Does Art. 18 echr Grant Protection Against Politically Motivated Criminal Proceedings’ (2014) 4 European Criminal Law Review 91, 112.
Khodorkovskiy v Russia 5829/04 (ECtHR, 31 May 2011) para 260. This approach to the standard of proof emanates from one of the earliest authorities concerning Article 18: Kamma v the Netherlands 4771/71 (ECmHR, dec, 14 July 1974).
Merabishvili (n 3).
See Stirner (n 10); M Smith, ‘The Adjudicatory Fact-Finding Tools of the European Court of Human Rights’ (2009) 2 European Human Rights Law Review 206.
B Garner, Black’s Law Dictionary (11th edn, Thomson Reuters 2019) 244.
Georgia v Russia [gc] 13255/07 (ECtHR, 3 July 2014) para 94.
C Bicknell, ‘Uncertain Certainty?: Making Sense of the European Court of Human Rights’ Standard of Proof’ (2019) 8(2) International Human Rights Law Review 155, 160.
El-Masri v The Former Yugoslav Republic of Macedonia [gc] 39630/09 (ECtHR, 13 December 2012) para 151.
See G Baranowska and K Henrard in this Special Issue.
See also T Mortier, ‘Reprehensible or Legitimate Aims? A Proposal for a New Approach to Article 18 echr in Light of Its Predominance Test’ (2023) 2 European Convention on Human Rights Law Review 1, 13.
Merabishvili (n 3) para 353.
Bicknell (n 20) 160.
Khodorkovskiy (n 15) para 260.
Merabishvili (n 3) para 314.
Nachova and Others v Bulgaria [gc] 43577/98 and 43579/98 (ECtHR, 6 July 2005) para 147.
Denmark, Norway, Sweden, and the Netherlands v Greece 3321/67 and others (ECmHR, report, 5 November 1969) para 30.
See Stirner (n 10) 130 and the sources cited therein: n 101.
Merabishvili (n 3) para 314.
Ibid para 311.
Khodorkovskiy (n 15) para 256.
Merabishvili (n 3) paras 311, 313, and 315.
Gusinskiy (n 1); Cebotari v Moldova 35615/06 (ECtHR, 13 November 2007); Lutsenko v Ukraine 6492/11 (ECtHR, 3 July 2012); Tymoshenko v Ukraine 49872/11 (ECtHR, 30 April 2013); Ilgar Mammadov v Azerbaijan 15172/13 (ECtHR, 22 May 2014); Rasul Jafarov (n 8).
Mammadli v Azerbaijan 68762/14 and 71200/14 (ECtHR, 20 September 2018); Rashad Hasanov and Others v Azerbaijan 48653/13 and others (ECtHR, 7 June 2018); Aliyev v Azerbaijan 68762/14 and 71200/14 (ECtHR, 20 September 2018); Navalnyy (n 6); Navalnyy (No 2) (n 6); Natig Jafarov v Azerbaijan 64581/16 (ECtHR, 7 November 2019); Kavala v Turkey 28749/18 (ECtHR, 10 December 2019); Ibrahimov and Mammadov v Azerbaijan 63571/16 and others (ECtHR, 13 February 2020); Khadija Ismayilova v Azerbaijan (No 2) 30778/15 (ECtHR, 27 February 2020); Yunusova and Yunusova v Azerbaijan (No 2) 68817/14 (ECtHR, 16 July 2020); Selahattin Demirtaş (No 2) (n 6); Azizov and Novruzlu v Azerbaijan 65583/13 and 70106/13 (ECtHR, 18 February 2021); Democracy and Human Rights Resource Centre and Mustafayev v Azerbaijan 74288/14 and 64568/16 (ECtHR, 14 October 2021); Miroslava Todorova (n 9); Juszczyszyn (n 11); Yüksekdağ Şenoğlu and Others v Türkiye 14332/17 and others (ECtHR, 8 November 2022).
Merabishvili (n 3) paras 309, 310, and 314.
Ibid para 291.
Ibid.
See, for example, Navalnyy (n 6); Navalnyy (No 2) (n 6).
See Udaltsov v Russia 76695/11 (ECtHR, 6 October 2020); Razvozzhayev v Russia and Ukraine and Udaltsov v Russia 75734/12 and others (ECtHR, 19 November 2019).
Sabuncu and Others v Turkey 23199/17 (ECtHR, 10 November 2020).
See also the related case of Şik v Turkey (No 2) 36493/17 (ECtHR, 24 November 2020).
Sabuncu and Others (n 42) paras 255–266.
Ibid para 256.
See, for example, Sabuncu and Others (n 42); Şik (n 43); Ahmet Hüsrev Altan v Turkey 13252/17 (ECtHR, 13 April 2021); Mammadli v Azerbaijan 68762/14 and 71200/14 (ECtHR, 20 September 2018).
Selahattin Demirtaş (No 2) (n 6) para 401.
Merabishvili (n 3) para 323.
Ibid para 324.
Ibid para 329.
Ibid paras 320–328.
Khodorkovskiy (n 15) para 259.
Merabishvili (n 3) para 344.
Ibid para 350.
P Leach, ‘Georgia: Strasbourg’s Scrutiny of the Misuse of Power’ (Open Democracy, 5 December 2017): <https://www.opendemocracy.net/en/odr/georgia-strasbourgs-scrutiny-of-the-misuse-of-power/>.
Kavala (n 36) para 217.
Ibid para 222.
Ibid para 228.
European Commission for Democracy Through Law (Venice Commission), ‘Opinion on the Amendments to the Constitution Adopted by the Grand National Assembly on 21 January 2017 and to be Submitted to a National Referendum on 16 April 2017’ (13 March 2017) cdl-ad(2017)005 (Opinion No 875/2017).
Selahattin Demirtaş (No 2) (n 6) para 434.
Navalnyy (n 6) para 167.
Aliyev (n 36) para 211.
Miroslava Todorova (n 9) para 206.
Democracy and Human Rights Resource Centre and Mustafayev (n 36) para 108.
Juszczyszyn (n 11) para 335.
See, for example, Democracy and Human Rights Resource Centre and Mustafayev (n 36) para 109, citing Aliyev (n 36).
See, most notably, Juszczyszyn (n 11) paras 322–323.
Merabishvili (n 3) para 307.
Mortier (n 23) 22–28, citing: Merabishvili (n 3); Selahattin Demirtaş (No 2) (n 6); Azizov and Novruzlu (n 36); Miroslava Todorova (n 9).
B Çalı and K Hatas, ‘History as an Afterthought: The (Re)discovery of Article 18 in the Case Law of the European Court of Human Rights’, in The European Court of Human Rights: Current Challenges in Historical and Comparative Perspective, H Aust and E Demir-Gürsel (eds), (Edward Elgar 2021) 158, 173.
Merabishvili (n 3) para 308.
Navalnyy (n 6) para 175.
Ibid.
See Merabishvili (n 3); Miroslava Todorova (n 9); Azizov and Novruzlu (n 36); Navalnyy (n 6); Selahattin Demirtaş (No 2) (n 6); Juszczyszyn (n 11).
American Convention on Human Rights (Pact of San Jose) (adopted 22 November 1969, entered into force 18 July 1978) 1144 unts 123.
Heri (n 5) 43, citing: Granier et al (Radio Caracas Television) v Venezuela, Judgment, Inter-America Court of Human Rights Series C No 293 (22 June 2015); San Miguel Sosa et al v Venezuela, Judgment, Inter-American Court of Human Rights Series C No 348 (8 February 2018).
Merabishvili (n 3) para 154; ‘Conference of Senior Officials (8–17 June 1950)’, in Collected Edition of the ‘Travaux préparatoires’ of the European Convention on Human Rights, vol 4 (Martinus Nijhoff 1977) 258–259. See also Tsampi (n 5) 137–141.
Merabishvili (n 3) para 289 and the sources cited therein.
Ibid para 291, citing, inter alia, Airey v Ireland 6289/73 (ECtHR, 9 October 1979).
Merabishvili (n 3) para 289.
Ibid paras 157–160, citing: Granier et al (n 76); San Miguel Sosa (n 76); Quintana Coello et al v Ecuador, Judgment, Inter-America Court of Human Rights Series C No 266 (23 August 2013); Camba Campos et al v Ecuador, Judgment, Inter-America Court of Human Rights Series C No 268 (28 August 2013).
On the consideration of context in respect of state of the domestic judiciary and separation of powers, compare Miroslava Todorova (n 9) paras 206–207 and Quintana Coello et al (n 81) paras 173–177.
Merabishvili (n 3) para 168.
Ibid Concurring Opinion of Judge Serghides, paras 58–60.
For a helpful overview of the emergence of the misuse of power in these jurisdictions, see Case 3/54 Associazione Industrie Siderurgiche Italiane (assider) v High Authority of the European Coal and Steel Community [1955] ecr i-63 and Case 4/54 Industrie Siderurgiche Associate (isa) v High Authority of the European Coal and Steel Community [1955] ecr i-91, Joined Opinion of ag Lagrange. See, most recently, in the German context, vg Cologne, September 8th, 2021 – 23 K 7046/18.
See, for example, the Inner House of Court of Session and the United Kingdom Supreme Court judgments concerning the unlawful prorogation of the UK Parliament in 2019: Cherry and Others v Advocate General for Scotland [2019] csih 49, 2019 slt 1097; R (Miller) v The Prime Minister [2019] uksc 41, [2020] ac 373.
See, for example, T-271/10 renv ii H v Council of the European Union (gc, 18 November 2020).
J Parchomiuk, ‘Abuse of Discretionary Powers in Administrative Law. Evolution of the Judicial Review Models: From “Administrative Morality” to the Principle of Proportionality’ (2018) 26 Časopis pro právní vědu a praxi 453, 465–466 (reviewing the law of France, Germany, and England and Wales).
In the Dutch context, for example, see Court of Appeals in Amsterdam, 21 December 2015, ecli nl ghams 2015 5307, where the judicial (cross-)examination of police officers revealed that the purpose of vehicle checks was related to criminal suspicions and not traffic flow concerns.
See, for example, H (n 87), where numerous irregularities were noted in the human resource procedure leading to the applicant’s reassignment to another place of employment, which was ultimately found to have pursued an ulterior purpose.
Merabishvili (n 3) paras 281 and 317, citing Rasul Jafarov (n 8). Interestingly, Rasul Jafarov does not cite any case law or materials external to the ECtHR.
See Ireland v the United Kingdom [Plenary Court] 5310/71 (ECtHR, 18 January 1978).
Ibid para 160.
For one of the earliest examples, in the French context, see ce November 26, 1873 (Laumonnier-Carriol), Rec ce 1873.
Merabishvili (n 3) para 168.
Ibid Concurring Opinion of Judge Serghides, paras 58–60.
Tsampi (n 5) 144. See, for example, ce June 16, 1965 (Dlle Deffaut), Rec ce 1965; ce January 18, 1950 (Consorts de Tricornot), Rec ce 1950.
See, most recently, T-607/15 Yieh United Steel Corp v European Commission (gc, 3 December 2019), para 112 (emphasis added).
See, for example, in the Dutch context, M van der Woude and J Brouwer, ‘Searching for “Illegal” Junk in the Trunk: Underlying Intentions of (Cr)Immigration Controls in Schengen’s Internal Border Areas’ (2017) 20 New Criminal Law Review 157, 169.
Merabishvili (n 3) para 307.
Ibid para 311.
Ibid para 314.
Ibid para 260.
E Kūris, ‘Wrestling With the ‘Hidden Agenda’: Toward a Coherent Methodology for Article 18 Cases’, in Human Rights with a Human Touch: Liber Amicorum Paul Lemmens, K Lemmens, S Parmentier, and L Reyntjens (eds), (Intersentia 2019) 539, 551.
Sabuncu and Others (n 42) Partly Dissenting Opinion of Judge Kūris, para 24.
See, for example, Heri (n 5) 55–56; Tan (n 5) 136–138; B Çalı, ‘Merabishvili v. Georgia: Has the Mountain Given Birth to a Mouse?’ (Verfassungsblog, 3 December 2017): <https://verfassungsblog.de/merabishvili-v-georgia-has-the-mountain-given-birth-to-a-mouse/>.
Merabishvili (n 3) para 289 and the sources cited therein.
D Harris and others, Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights (4th edn, Oxford University Press 2018) 468. See also Merabishvili (n 3) Joint Concurring Opinion of Judges Yudkivska, Tsotsoria, and Vehabović, para 18 and the sources cited therein.
O Arnardóttir, Equality and Non-Discrimination Under the European Convention on Human Rights (Martinus Nijhoff Publishers 2003) 177.
Merabishvili (n 3) Concurring Opinion of Judge Serghides, para 20.
Compare, Razvozzhayev and Udaltsov (n 41) Concurring Opinion of Judge Keller, para 4.
Sabuncu and Others (n 42) para 256; Şik (n 43) para 218; Ahmet Hüsrev Altan (n 46) para 246.
Sabuncu and Others (n 42); Şik (n 43); Ahmet Hüsrev Altan (n 46).
See, for example, Selahattin Demirtaş (No 2) (n 6).
Ukraine v Russia (Re Crimea) 20958/14 and 38334/18 (ECtHR, dec, 16 December 2020) para 263.
Udaltsov (n 41) para 195; Razvozzhayev and Udaltsov (n 41) para 305.
Tan (n 5) 134.
See, for example, Ecodefence v Russia 9988/13 and others (ECtHR, 14 June 2022).
Sabuncu and Others (n 42) Partly Dissenting Opinion of Judge Kūris, paras 21–25.
Venice Commission (n 59).
Selahattin Demirtaş (No 2) (n 6) para 434.
Juszczyszyn (n 11) para 330, citing Venice Commission and the Directorate General of Human Rights and Rule of Law (dgi) of the Council of Europe, ‘Joint Urgent Opinion on Amendments to the Law on the Common Courts, the Law on the Supreme Court and Some Other Laws’ (22 June 2020) cdl-ad(2020)017 (Opinion No 977/2020).
Sabuncu and Others (n 42).
Şik (n 43).
Ahmet Hüsrev Altan (n 46).
Venice Commission, ‘Opinion on Measures Provided in the Recent Emergency Decree-Laws With Respect to Freedom of the Media’ (13 March 2017) cdl-ad(2017)007 (Opinion No 872/2016).
Ibid para 92.
See E Turkut, ‘The Venice Commission and Rule of Law Backsliding in Turkey, Poland and Hungary’ (2021) 2 European Convention on Human Rights Law Review 209.
See, respectively, Merabishvili (n 3) Concurring Opinion of Judge Serghides, para 14; Committee of Ministers, ‘Revised Statute of the European Commission for Democracy Through Law’ (21 February 2002) Resolution (2002)3, Article 1(1).
B Çalı, ‘Proving Bad Faith in International Law: Lessons from the Article 18 Case Law of the European Court of Human Rights’, in Secondary Rules of Primary Importance – Attribution, Causality, Standard of Review and Evidentiary Rules in International Law, G Kajtár, B Çalı, and M Milanović (eds), (Oxford University Press 2022) 183, 199.
See, for example, Yunusova and Yunusova (n 36) para 187.
Khodorkovskiy and Lebedev v Russia (No 2) 51111/07 and 42757/07 (ECtHR, 14 January 2020) para 622, where the Court used its findings in Khodorkovskiy (n 15) to justify its dismissal of the applicant’s Article 18 complaint. See also, more recently, Nevzlin v Russia 26679/08 (ECtHR, 18 January 2022) para 123.
Merabishvili (n 3) para 317.
Kavala (n 36) para 229.
Ibid para 61.
Ibid para 229.
Sabuncu and Others (n 42) para 237; Şik (n 43) para 196.
Sabuncu and Others (n 42) para 255; Şik (n 43) para 214.
Kavala (n 36) para 232.
See, for example, Sabuncu and Others (n 42) paras 252–256 and the respective criticisms of this approach in that case in the Partly Dissenting Opinion of Judge Kūris, paras 26–37.
Ibid. See also Şik (n 43); Ahmet Hüsrev Altan (n 46).
Merabishvili (n 3) para 301.
Rasul Jafarov (n 8) para 158.
Sabuncu and Others (n 42) para 256; Şik (n 43) para 218; Ahmet Hüsrev Altan (n 46) para 246 (emphasis added).
Tchankotadze v Georgia 15256/05 (ECtHR, 21 June 2016) Concurring Opinion of Judges Sajó, Tsotsoria, and Pinto De Albuquerque, para 8.
H Keller and C Heri, ‘Selective Criminal Proceedings and Article 18 echr: The European Court of Human Rights Untapped Potential to Protect Democracy’ (2016) 37 Human Rights Law Journal 1, 9; H Satzger and others, ‘Does Art. 18 echr Grant Protection Against Politically Motivated Criminal Proceedings: (Part 2) Prerequisites, Questions of Evidence and Scope of Application’ (2014) 4 European Criminal Law Review 248, 254–255.
See, for example, dh and Others v the Czech Republic 57325/00 (ECtHR, 13 November 2007) para 189, concerning indirect discrimination, and El-Masri (n 21) para 165, concerning enforced disappearances. See also G Baranowska and K Henrard in this Special Issue.
Sabuncu and Others (n 42); Şik (n 43); Ahmet Hüsrev Altan (n 46).
Gusinskiy (n 1).
Ibid para 75.
Ibid.
Selahattin Demirtaş (No 2) (n 6) para 427.
Merabishvili (n 3) para 316.
Heri (n 5) 55.
Çalı and Hatas (n 70) 176.
J Auby, ‘The Abuse of Power in French Administrative Law’ (1970) The American Journal of Comparative Law 549.
Tan (n 5) 138; V Tzevelekos, ‘The United Kingdom’s Presumption of Derogation from the echr Regarding Future Military Operations Overseas: Abuse of Rights, Articles 17 and 18 echr, and à la carte Human Rights Protection’ (2017) 22 Austrian Review of International and European Law 137, 157–158.
Mortier (n 23) 39.
Ibid.
See van der Woude and Brouwer (n 99); H Molbæk-Steensig, ‘How to Deal with Really Good Bad-Faith Interpreters: M.A. V Denmark’ (2022) 37 Utrecht Journal of International and European Law 59.
Merabishvili (n 3) Joint Concurring Opinion of Judges Yudkivska, Tsotsoria, and Vehabović, para 16.
Ibid para 17.
Ibid para 21.
Çalı and Hatas (n 70) 173.
Navalnyy (n 6) Partly Concurring, Partly Dissenting Opinion of Judges Pejchal, Dedov, Ravarani, Eicke, and Paczolay, para 30.
Navalnyy (n 6) para 175.
Ibid paras 182–186.
See A Zysset, ‘Searching for the Legitimacy of the European Court of Human Rights: The Neglected Role of “Democratic Society”’ (2016) 5 Global Constitutionalism 16.
Sabuncu and Others (n 42) Partly Dissenting Opinion of Judge Kūris, para 24.
See, for example, Heri (n 5) 55–56; Tan (n 5) 136–138.
Çalı and Hatas (n 70) 176.