CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ ARTICLE 18 OF THE ECHR AS AN EARLY WARNING INSTRUMENT FOR THREATS… the Council of Europe, notably, the emerging ideas of illiberal democracy and the massive pressures on opposition in Turkey, Russia and Azerbaijan. The Court has already established extensively the minimum requirements for a rule-based governance. This primarily includes clear, stable and certain rules which are not susceptible to be abused. It also supposes that national authorities are allowed to act strictly within the scope of legally defined rights and obligations. 36 These elements of the rule of law explain why this fundamental principle is the cornerstone of the European Public Order and why it is incompatible with authoritarianism. It is because the latter is not governed by pre-existing and generally applicable laws but the will of the powerful, which is incompatible with proportionality and reasonableness. ‘The unchecked will of those in power, when detached from the principle of the rule of law, is in reality nothing more than the preservation of self-interest and vested power structures’. 37 This Article aims to demonstrate the policy shift of the Court in assessing alleged violations of Article 18 of the European Convention after Merabishvili judgment. The activation of Article 18 in practice by since 2017 could be a signal that the Court is hereafter basing its analysis not only on the institutional assessment of democracy, but also on conducting a contextual value-based analysis though the doctrine of ‘ultimate purpose’ . This approach follows the growing concerns in the recent years about the increasing lack of effective implementation of Convention at national level. 38 To address these issues, this Article will firstly address the essence of Article 18 of the Convention as one of those articles of the Convention that addresses structural-systemic violations of democratic orders of governance. It will then examine the Court’s approach towards this issue before Merabishvilli judgment, as well as critically analyse Merabishvilli judgment and its repercussions. Finally, the Article will scrutinize the Court’s case law on Article 18 in the aftermath of Merabishvilli judgment. As it pertains to the methodology employed in the article, the case law selection is limited to the judgments delivered under Article 18 since Merabishvilli case until the last episode of Article 18 to date – Selahattin Demirtas v. Turkey (No. 2) . Through its decade-long interpretation of the Convention, the ECtHR has identified the core fundamental values. The Court has held that ‘[even] in the framework of a state of emergency, the fundamental principle of the rule of law must prevail’. 39 Therefore, as rightfully noted by the President of the ECtHR, Robert Spano: “[h]aving by sovereign choice decided to become an integral part of a ‘European public order’, embedded within the Convention system, the Member States of the Council of Europe cannot legitimately attempt to redefine the concept of the rule of law or the fundamental components of the system of rights and values enshrined in the Convention.” 40 36 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. 3. 37 Ibid., p. 4. 38 Hight Level Conference on the Future of the European Court of Human Rights, Brighton Declaration, 19-20 April 2012, available at https://www.echr.coe.int/Documents/2012_Brighton_FinalDeclaration_ENG.pdf. 39 Piskin v. Turkey , Merits and Just Satisfaction, Judgment of 15 December 2020, Appl. No. 33399/18, § 153. 40 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. 4.

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