CYIL vol. 13 (2022)

ARMEN HARUTYUNYAN CYIL 13 ȍ2022Ȏ The ECtHR plays a key role for the development of the concept of the rule of law. Through the individual application procedure, the Court monitors the national legal systems of the member states. The individual application procedure, as well as the Convention enables the structural and direct involvement with the national legal systems. 41 “While the ECtHR is not formally bound to follow its previous judgments, it is in the interests of legal certainty, equality and foreseeability before the law that the Court should not depart, without good reasons, from precedents laid down in its previous cases.” However, as the Convention is a system for the protection of human rights, the Court must consider the changing conditions in Contracting states and, consequently, respond to any emerging convergence as to the standards to be achieved. It is important that the Convention is interpreted and applied in a manner which renders its rights effective and practical, not theoretical and illusory. If the Court fails to maintain its evolutive and dynamic approach, there is a risk rendering it a bar to reform or improvement. 42 It is within this logic that the application of Article 18 of the Convention has been evolved by the Court. 4.1 Pre-Merabishvili period Article 18 of the European Convention on Human Rights (the Convention) has been by far seen as one of the most significant legal tools against the fall of the rule of law in member states of the CoE. 43 “This is because the finding of an Article 18 violation (in conjunction with a substantive right in the Convention) by the European Court of Human Rights indicates that state authorities restricted the Convention rights for illegitimate ulterior purposes. In other words, it is when domestic authorities clearly step outside of the rule of law regime based on the Convention that the Court finds Article 18 violations.” 44 It shows that human rights restrictions may have ulterior hidden purposes and reasons behind the façade of maintaining democratic values. 45 Being the last Article in Section I of the European Convention, Article 18 has traditionally been granted a very high burden of proof by the ECtHR. Even though the architects of the Convention felt then need to include a last-resort mechanism to prevent a descent into totalitarianism in Europe, its positioning largely remained unsettled due to scarcity of such cases. Under these circumstances, the Court attributed a rather high burden of proof in order to establish such an important violation of the Convention. 46 41 LAUTENBACH, G. The Concept of The Rule of Law and The European Court of Human Rights (2013), p. 13. 42 Christine Goodwin v. the United Kingdom , Merits and Just Satisfaction, Judgment of 11 July 2002, Appl. No. 28957/95, § 74. 43 TAN, F. ‘The Dawn of Article 18 ECHR: A Safeguard Against European Rule of Law Backsliding?’, 9(1) Göttingen Journal of International Law, (2018), 140; TSAMPI, A. ‘The New Doctrine on Misuse of Power Under Article 18 ECHR: Is it About the System of Contre- Pouvoirs Within the State After All?’ 38(2) Netherlands Quarterly of Human Rights (2020), 136. 44 CALI, B. ‘How Loud Do the Alarm Bells Toll? Execution of ‘Article 18 Judgments’ of the European Court of Human Rights’, (2) European Convention on Human Rights Law Review 2, (2021), p. 275. 45 Gusinskiy v Russia , (Application No. 70276/01) , para 52–55, Navalnyy v Russia [gc] (Application no 29580/12) para 163,164, Demintish vs Turkiye, (Application no 14305/17 ) para 434–436. 46 KELLER, H. and HERI, C. ‘Selective Criminal Proceedings and Article 18 ECHR: The European Court of 4. Effective protection of human rights in the jurisprudence of the ECtHR within the context of Article 18

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