CYIL vol. 13 (2022)

ARMEN HARUTYUNYAN CYIL 13 ȍ2022Ȏ effective remedies available under their respective jurisdiction in order to secure everyone’s conventional rights and freedoms are guaranteed. Indeed, the Court has traditionally recognized that states enjoy some margin of appreciation when implementing the Convention within their jurisdiction. Nevertheless, the activation of Article 18 of the Convention by the Court demonstrates that to a large extent the deficiencies of application and implementation of the Convention by the state parties. These failures, however, do not only concern about acceptable margins, but rather question the entire democratic foundations of rule-based orders of member states to the Council of Europe. This raises the question of the role of the Court as a constitutional safeguard to the European democratic societies recognized in the preamble of the Convention and the importance of the enhanced judicial dialogue between the Court and national authorities as stated in the 2012 Brighton Declaration. 5. Conclusive remarks Starting from the Merabishvili judgment, the Court does not apply the general presumption of good faith or any special rules regarding the proof. As we can see from the post-Merabashvili cases, the Court predominantly based its analysis on the “ulterior purpose” approach mostly in cases of politically motivated restrictions of rights by authorities. In our opinion, having seen what is going on in some member states 91 concerning oppressions over civil society, political oppositions, judges 92 , the Court has focused in future cases on troubling pattern, of measures adopted by authorities against above mentioned applicants. Article 18 addresses a particularly malicious situation of rule of law circumvention by State authorities, because it is aimed at addressing situations where the State restricts individual rights under false pretenses. Restrictions on fundamental rights and freedoms are permissible only to the extent they are necessary to protect the public interest. In other words, the state is prohibited to take any action which, beyond the necessary measure, restricts Conventional rights and freedoms. Therefore, here we refer to the prohibition of the abuse of such restrictions. This is the quintessence of the Article 18 of the ECHR. Restrictions on natural rights is permissible only for preserving the rights of others, and not for the sake of some immanent obligations. Rights and freedoms can only be restricted if it is prescribed by law. Someone’s rights can be restricted by the rights of others, and vice versa. It should be emphasized that the main and even natural criteria of human rights restrictions should be the guarantee for the rights of others and of natural community. This expresses the essence of the relationship between democracy, rule of law and human rights. Democracy and human rights determine the extent to which conventional rights can be restricted, as well as the extent to which these rights restrict the power. Assessing the case-law discussed above we can say that Article 18 of ECHR became an early warning instrument for threats to democracy and the rule of law. ECHR stands and meets challenges for democracy, rule of law, and in general European Public Order. April 2012, available at https://www.echr.coe.int/Documents/2012_Brighton_FinalDeclaration_ENG.pdf. 91 See HARUTYUNYAN, A. ‘The Future of the European Court of Human Rights in the Era of Radical Democracy’, (2021) 2 European Convention on Human Rights Law Review 20, pp. 20–26. 92 See for example Baka v. Hungary , Merits, Judgment of 27 May 2014, Appl. No. 20261/12; Karácsony and Others v. Hungary , Merits and Just Satisfaction, Judgment of 16 September 2014, Appl. No. 42461/13.

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