CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ ARTICLE 18 OF THE ECHR AS AN EARLY WARNING INSTRUMENT FOR THREATS… “In the most extreme cases, applicants had to provide ‘incontrovertible and direct proof ’ of a violation of Article 18 and show that ‘the whole legal machinery of the respondent state’” 47 had been ‘ ab initio misused, that from the beginning to the end the authorities were acting with bad faith and in blatant disregard of the Convention’. 48 Until recently Article 18’s potential as an early warning system for threats to the rule of law remained rather passive. “Bad faith’ constitutes a focal point in the new case-law of the Court.” 49 Known as ‘misuse of power’ or ‘misapplication of power’, it derives to a large extent from the doctrine of the détournement de pouvoir in French Administrative Law, which prohibits the limitation of rights in bath faith for ulterior purposes based on reasons of State. 50 As read in the travaux préparatoires of the Convention, the drafters of the Convention wanted to exclude the possibility that the State ‘intervenes to suppress, to restrain and to limit these freedoms for (…) reasons of state’, especially if it was ‘to protect itself according to the political tendency which it represents, against an opposition which it considers dangerous’. 51 In 1974 the European Commission on Human Rights has produced two key points for interpreting the clause: 1. While Article 18 is not applicable alone, it can nevertheless be violated even if there is no breach of article in conjunction with which it is applied; and 2. it can only be contravened if the Convention right which has been interfered with is subject to restrictions. “Ever since and for fifty years, nothing in the case-law of the Court Article 18 of ECHR remained a dormant provision. For the first time it was mentioned in 2004, in the Gusinsky v. Russia case, where the Court found a breach of Article 18 in conjunction with Article 5 of the Convention. In that case the Court noted that the fact that the applicant, a media tycoon, had been offered a commercial agreement whilst in prison in exchange for the dropping of charges against him, suggested that his prosecution pursued the ulterior purpose of intimidating him.” 52 Nevertheless, Gusinskiy judgment did not dramatically alter the status of Article 18 in the case-law of the Court. 53 The applicants in the Article 18 judgments are primarily individuals who claim that their governments overstepped their powers. “ Applicants range from businessmen, civil servants, opposition politicians, human rights defenders, members of civil society, and journalists. The first applicant, Gusinskiy, was a Russian media tycoon, and the second, Cebotari, was a Moldovan civil servant. Lutsenko, Tymoshenko, Merabishvili, Mammadov, Navalnyy, and Demirtaş are well Human Rights’ Untapped Potential to Protect Democracy, (2016) 36 Human Rights Law Journal 1, p. 7. 47 HERI, C. Loyalty, Subsidiarity, and Article 18 echr: How the ECtHR Deals with Mala Fide Limitations of Rights, 2020, p. 30. 48 Khodorkovskiy v. Russia , Merits and Just Satisfaction, Judgment of 31 May 2011, Appl. No. 5829/04, § 260. 49 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?, 2020, p. 135. 50 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?’, (2020) 38(2) Netherlands Quarterly of Human Rights 134, pp. 135–136. 51 Ibid., p. 140. See also, Pierre-Henri Teitgen (France) orally presenting the report of the Legal Committee during the Plenary sitting on 7 September 1949: 1 Collected edition of the ‘Travaux préparatoires’ of the European Convention on Human Rights , p. 278. 52 Ibid., pp. 141–142. 53 Ibid., p. 142.

135