CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ ARTICLE 18 OF THE ECHR AS AN EARLY WARNING INSTRUMENT FOR THREATS… critics, civil society activists and human rights defenders through retaliatory prosecutions and misuse of criminal law in defiance of the rule of law.” 76 Navalnyy v. Russia (No. 2) On 9 April 2019, the Court issued Navalnyy v. Russia (No. 2 ) judgment, where it reaffirmed its conclusions in Navalnyy v. Russia case of 2018. 77 The Court again concluded that Mr. Navalnyy was targeted as a political activist. In particular, the Court noted that the measures against the applicant had ‘become progressively more implausible’, and that he had been ‘specifically and personally targeted as a known activist’. 78 Relying on the Merabishvili test, the Court held that the house arrest served of Mr. Navalnyy pursued an aim other than that stipulated by the domestic courts. The broader context of the attempts of Russian authorities were to ‘bring the opposition’s political activity under control’. Thus, the Court held that the restrictions on the applicant’s Article 5 rights pursued the purpose of suppressing political pluralism, which constituted an ulterior purpose, and ‘attained significant gravity’. 79 The ultimate purpose of the actions of Russian authorities was suppression of political pluralism. In the recent years, the Court ruled on a number of cases concerning the arbitrary arrest, pre-trial detention of government critics, civil society organizations and human rights activists and defenders, journalists through retaliatory prosecutions and misuse of the criminal law and state powers in beach of Article 18 of the Convention. Natig Jafarov v. Azerbaijan case became another episode in Article 18 where the ECtHR found a violation basing it on the fact that the actions of the authorities had been driven by an ulterior motive. 80 In this case, an opposition activist campaigning against the amendments to the Constitution, was subjected to a pre-trial detention and confinement in a metal cage in the court. Mr Jafarov complained from an alleged breach of Article 3 (prohibition of inhuman or degrading treatment) for being held in a cage during the court hearing, Article 5(1)(c),(3) and (4) (right to liberty and security) for his arrest and pre-trial detention, in particular there was no reasonable suspicion that he committed a criminal offense and for the failure of the courts to carry out an effective review of his detention, and finally he complained from an alleged breach of Article 18 in conjunction with Article 5, as well as from limitation of freedom of assembly and association (Article 11). The analysis of the Court on Article 18 in conjunction with Article 5, was no different from earlier case-law under Article 18. The Court had to examine whether there was proof that the authorities’ actions of the arbitrary arrest and detention of government critics, civil society activists and human rights defenders, such as Mr Jafarov, had been driven by an ulterior motive. 81 The analysis of the Court took into account different factors. Firstly, the Court noted that the applicant was a political activist who was engaged in the 2016 referendum campaign. Secondly, the Court noted that the situation of the applicant should be viewed on the background of the arrest of other activists and human rights defenders. Thirdly, the timing of his arrest was important: 76 See the Azerbaijan: Committee of Ministers deplores absence of progress in execution of European Court’s judgments – News 2021 (coe.int) – (Last accessed 15.09.2022) 77 Navalnyy v. Russia (No. 2) , Merits and Just Satisfaction, Judgment of 9 April 2019, Appl. No. 43734/14. 78 Ibid., § 94. 79 Ibid., §§ 96–98. 80 Natig Jafarov v. Azerbaijan , Merits and Just Satisfaction, Judgment of 7 November 2019, Appl. No. 64581/16. 81 Ibid., §§ 65–71.

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