CYIL vol. 13 (2022)

ARMEN HARUTYUNYAN CYIL 13 ȍ2022Ȏ judgments. In Golder v. the United Kingdom , the Strasbourg Court made clear that the rule of law under the Convention is ‘one of the features of the common spiritual heritage of the member States of the Council of Europe’. The foundation of the entire convention system is the rule of law. It is a principle ‘underlying the Convention’ along with the ‘avoidance of arbitrary power’. 29 The so-called European Public Order is a system of governance shared by the member states of the Council of Europe based on the fundamental principle of rule of law which allows to attain the objectives set out in the European Convention of Human Rights. Disregarding the rule of law is incompatible with implementation of Convention obligations by member states. 30 Article 18 is in organic connection with the rule of law. When law is abused while being covered under the cover of very protection of rule of law, Article 18 comes into play. This Article protects the situations where states limit rights for ‘ulterior’, ‘hidden’ purposes, and therefore provides a final warning of a systemic rule of law crackdown. 31 Article 18 protects against abuse by the State. 32 At its core this Article expresses the very essence of the European system of supranational human rights protection – as an early warning system to prevent a descent into totalitarianism ever happening in the European continent again. As it is noted in the travaux préparatoires of the Convention, Article 18 guards against State suppression of the Convention rights and 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 effect’. 33 This embodies the idea that no limitations of rights and freedoms that are necessary in a democratic society should be contrary to the aims and principles of the Council of Europe. Article 18 of ECHR allows the Court to condemn Contracting Parties for the abuse of their sovereign right to limit certain rights and freedoms under the Convention, i.e. not for a permitted aim but for illegitimate reasons in a manner that is incompatible with and destructive of the principles of democracy and the rule of law. 34 Historically, Article 18 has rarely been invoked. Applications based on alleged violation of this Article have mostly been declared inadmissible and in the admitted applications the Court did not find a violation. It was conditioned by narrow scope and high burden of proof. Since the Grand Chamber changed its approach in the 2017 Merabishvili judgment, the Court has started to find more regular violations of Article 18. 35 Such a shift of policy by the Court unsurprisingly coincides with the rule of law crisis in several Member States of 29 SPANO, R. ‘The Rule of Law as the Lodestar of the European Convention on Human Rights: The Strasbourg Court and the Independence of the Judiciary’, (2021) 27 European Law Journal 1, p. 2. 30 Ibid., p. 3. 31 TAN, F. ‘The Dawn of Article 18 ECHR: A Safeguard Against European Rule of Law Backsliding?’, (2018) 9 Goettingen Journal of International Law 109, p. 120. 32 For an excellent elaboration, see KELLER, H. and HERI, C. ‘Selective Criminal Proceedings and Article 18 ECHR: The European Court of Human Rights’ Untapped Potential to Protect Democracy, (2016) 36 Human Rights Law Journal 1, p. 1. 33 Travaux Préparatoires de l’Article 18 de la Convention Européenne des Droits de l’Homme, 10 March 1975, at 3, available at echr.coe.int/LibraryDocs/Travaux/ECHRTravaux-ART18-CDH(75)11-BIL1338905.pdf. 34 HERI, C. 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, p. 26. 35 Ibid., p. 25.

132