CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ ARTICLE 18 OF THE ECHR AS AN EARLY WARNING INSTRUMENT FOR THREATS… illegitimate purpose dominates, then Article 18 is violated. 59 Furthermore, the Court noted that: “Which purpose is predominant in a given case depends on all the circumstances In assessing that point, the Court will have regard to the nature and degree of reprehensibility of the alleged ulterior purpose, and bear 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.” 60 As for the standard of proof, the Court found no reason to apply a special standard of proof for Article 18. 61 Furthermore, it elaborated that the modalities of proof must include ‘circumstantial evidence in this context means information about the primary facts, or contextual facts or sequences of events which can form the basis for inferences about the primary facts’. 62 Assessment of available formation shows that the predominant purpose of the detention of Mr. Merabashvili had changed during his detention. The detention based on reasonable suspicion changed to gain information about Mr. Saakashvili and Mr. Zhvania. 63 Through Merabishvili judgment the Court re-evaluates the standard of proof under Article 18. The major policy shift lies in how ‘purpose’ in Article 18 should be perceived. In this judgment, the Court relaxed its stance from demanding a proof of exclusively ‘a prohibited purpose’ to a proof of ‘beyond reasonable doubt’. This means that the cases mixed purposes may as well violate Article 18 if it is established that the nefarious purpose predominates. 64 4.3 Post-Merabishvili case-law Since Merabishvili, the Court has issuedmore than ten judgments on Article 18. Violations of Article 18 have been established against a number of Eastern European countries, such as The Court confirmed its Merabishvili judgment findings in the next case of Navalnyy v. Russia . In this case a prominent Russian opposition leader, blogger and political activist had been arrested at peaceful public gatherings and was charged with administrative offences. 65 Following the Merabishvili test of predominant ulterior purpose, the Court asked whether the arrests and administrative penalties could be regarded as an ulterior motive of the Russian authorities. It is noteworthy that the Court looked into the alleged violation of Article 18 through a time-based chronological approach. In particular, the Court noted that while in earlier cases of arrests there might have been a plurality of purposes, the presence of illegitimate 59 Merabishvili v. Georgia , Merits and Just Satisfaction, Judgment of 28 November 2017, Appl. No. 72508/13, § 305. 60 Ibid., § 307. 61 Ibid., § 316. 62 Ibid., § 317. 63 Ibid., §§ 351–353. 64 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. 31. 65 Navalnyy v. Russia , Merits and Just Satisfaction, Judgment of 15 November 2018, Appl. Nos. 29580/12, 36847/12, 11252/13, 12317/13 and 43746/14. Russia, Moldova, Ukraine, Georgia, Azerbaijan and Turkey. Confirmation of the Change of Approach (Navalnyy v Russia)

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