Article 18 of the European Convention on Human Rights

Last updated

Article 18 of the European Convention on Human Rights (ECHR) states:

Contents

The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.

This Article means that it is a violation of the ECHR for a state to restrict a listed human right for any reason other than the one formally given and allowed under the Convention; "there can be no inherent or implied limitations on the rights guaranteed. Each limitation must be expressed and have an explicit purpose". [1] According to Gomien, Article 18 can only be invoked with regards to one of the substantive rights guaranteed by the ECHR. [2]

In terms of comparison to other human rights instruments, this Article is reasonably unique: there is no such provision in the Universal Declaration of Human Rights or in the International Covenant on Civil and Political Rights. There is, however, a similar provision in Article 30 of the American Convention on Human Rights:

The restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in accordance with the laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established.

Application

Article 18 must always operate in tandem with another article of the ECHR, although that Article need not necessarily be violated, as explained by the Court in Gusinskiy v Russia: [3]

“Article 18 of the Convention does not have an autonomous role. It can only be applied in conjunction with other Articles of the Convention. There may, however, be a violation of Article 18 in connection with another Article, although there is no violation of that Article taken alone.”

Article 18 is designed to target ulterior motives for restricting human rights. [4] This article has most frequently been invoked by those claiming the state is attempting to restrict the individual's ability to participate in politics. [5] Article 18 is likely to be applicable in four situations: [6]

The onus is on the applicant to show an abuse of power by the state, or a breach of the principle of good faith. [8] This is a heavy burden to establish as there is a presumption that power has not been misused, meaning that although over 200 cases on this Article have been heard, only four violations of Article 18 have ever been found by the European Court of Human Rights. [9] This is exacerbated by the reluctance of the Court to rely on Article 18 rather than the other Article invoked in the case. [10] Beddard argues that Article 18 has also proved difficult to apply due to the Court's broad interpretation of the interests listed under the Convention, [11] and the application of the doctrine of the margin of appreciation. [12]

A finding that Article 18 has been violated does not directly lead to specific consequences, although like any other ECHR violation, Article 46 of the ECHR requires the State to take action to redress the individual's rights.

Successful claims

Lutsenko v Ukraine

In this case Lutsenko, the former minister of internal affairs of the Ukraine, argued that the real reason he had been arrested and detained was for publicly claiming his innocence in relation to accusations made against him. [13] The European Court of Human Rights found that alongside Article 5, Article 18 of the Convention had been violated by the Ukraine. The Ukraine pardoned Lutsenko on 7 April 2013 and released him. [14]

Gusinskiy v Russia

Gusinskiy v Russia saw the applicant argue that the state had forced him to sell his media business to a state petroleum company (Gazprom) on unfavorable terms while he was imprisoned (in exchange for the charges being dropped), which was an abuse of power. Both Article 5(1)(c) and Article 18 were held to be violated, with the Court saying that it was "not the purpose of such public law matters as criminal proceedings and detention on remand to be used as part of commercial bargaining strategies". [15]

Tymoshenko v Ukraine

Tymoshenko v Ukraine was a claim by former Ukrainian Prime Minister, Yulia Tymoshenko. [16] She alleged her arrest was politically motivated. After the European Court of Human Rights released its finding of a breach of Article 18, this was used by Tymoshenko and her supporters to claim that she was a 'political prisoner'. [17] The spokesperson for the Court, Roderick Liddell, then felt compelled to clarify the judgment, saying that the Court had found the pre-trial detention of Tymoshenko to be unnecessary and based on grounds that are not listed in Article 5 (namely, a judge detaining her because she had been disrespectful during a hearing), rather than agreeing with the argument that she had been detained in order to inhibit her political participation. [18] Tymoshenko was released on 22 February 2014. [19]

Cebotari v Moldova

Cebotari v Moldova concerned wrongful pre-trial detention. [20] The Court found that Cebotari's detention had been arbitrary (and therefore contrary to Article 5 ECHR), as it was not based upon a 'reasonable suspicion', meaning "the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence". [21] Instead, the detention had been a mechanism for pressuring Cebotari to stop other proceedings before the European Court of Human Rights. [22]

Ilgar Mammadov v Azerbaijan

Ilgar Mammadov v. Azerbaijan concerned the restriction of applicant’s liberty for purposes other than bringing him before competent legal authority on reasonable suspicion of having committed an offence. The applicant’s arrest had been linked to his specific blog entries, in particular, his post of 28 January 2013 which included sourced information shedding light on the "true causes" of the Ismayilli protests, which the Government had reportedly attempted to withhold from the public and which had immediately been picked up by the press.

Even though the prosecution had not made any express references to the applicant’s blog entries, the accusations against him had first been made in the official press statement issued a day after the post, and he had first been invited to the Prosecutor General’s Office for questioning on the same day. There was nothing in the case file to show that the prosecution had any objective information giving rise to a bona fide suspicion against the applicant at that time, and it had not been shown that they were in possession of any such information or witness statements at any point prior to his arrest.

The above circumstances indicated that the actual purpose of the impugned measures had been to silence or punish the applicant for criticising the Government and attempting to disseminate what he believed to be true information the Government were trying to hide. Accordingly, the restriction of the applicant’s liberty had been applied for purposes other than bringing him before a competent legal authority on reasonable suspicion of having committed an offence.

Unsuccessful claims

Khodorkovskiy and Lebedev v Russia

Khodorkovskiy and Lebedev v Russia involved a claim by Mikhail Khodorkovsky that his criminal prosecution was politically motivated, breaching Article 18. [23] Alongside this, Kordorkovskiy claimed violations of Articles 3 and 5 of the ECHR. Several of Khodorkovskiy's claims succeeded; two violations of Article 3 were found due to the conditions of his detainment in court and the remand prison, one violation of Article 5(1)b regarding his apprehension by police, one violation of Article 5(3) regarding the length of his detainment pending investigation and trial, and four procedural flaws violating Article 5(4). [24]

While the actions of the Russian government were condemned by the European Court of Human Rights, and violations of Khodorkovsky's human rights were found, in terms of the alleged violation of Article 18 it was said that there had not been incontestable evidence of the state being politically motivated. [25] The Court stated:

"[T]he whole structure of the Convention rests on the general assumption that public authorities in the member States act in good faith. That assumption is rebuttable in theory, but it is difficult to overcome in practice: the applicant alleging that his rights and freedoms were limited for an improper reason must convincingly show that the real aim of the authorities was not the same as that proclaimed (or as can be reasonably inferred from the context). Thus the Court has to apply a very exacting standard of proof to such allegations". [26]

Khodorkovskiy's lawyers claimed the finding of human rights violations by the Russian state as sufficient victory, as a court will very rarely attribute a bad faith motive to a government. [27]

Kamma v The Netherlands

Kamma's detention and remand for alleged extortion was allowed under Article 5(1)(c), however, the police used this time to investigate him for murder. [28] Under Dutch law, the suspicion of murder would have been enough to detain him on remand anyway, it was simply that the wrong procedure had been used. No breach of the Convention was found by the European Commission of Human Rights (now abolished).

No necessity to decide the issue

In the majority of cases, the Court has found that no separate issues arise under Article 18. [29] This generally occurs in four situations: [30]

Handyside v United Kingdom

Handyside v United Kingdom is a case largely known for its extension of the protection of freedom of expression, however, Article 18 was also argued. [31] The applicant argued that The Little Red Schoolbook had been seized in the United Kingdom to prevent the development of modern teaching techniques, rather than to protect morals. [32] The Commission chose to consider the matter solely under Article 10(2), taking the motivations of the state into consideration in deciding whether the limit on freedom of expression was justified. However, the Commission did go on to say that it did not consider any evidence to have been presented of motives that are not legitimate under Article 10(2).

Bozano v France

Bozano alleged breach of Article 5 through his deportation from France to Switzerland and consequent deprivation of his liberty. [33] The Commission found the deportation to be unlawful, as there had been a judicial veto on Bozano's extradition. It made no express finding under Article 18, simply saying the detention did not fall under Article 5(1)(f), detention with a view to deportation.

United Communist Party of Turkey v Turkey

This case centred around the dissolution of the United Communist Party of Turkey by the Constitutional Court of Turkey. [34] The applicants included an allegation of breach of Article 18 in their complaint. In view of the finding that there had been a violation of Article 11, the Commission did not consider it necessary to decide whether Article 18 had been complied with.

Related Research Articles

<span class="mw-page-title-main">European Convention on Human Rights</span> International treaty to protect human rights and fundamental freedoms in Europe

The European Convention on Human Rights is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953. All Council of Europe member states are party to the Convention and new members are expected to ratify the convention at the earliest opportunity.

<span class="mw-page-title-main">European Court of Human Rights</span> Supranational court established by the Council of Europe

The European Court of Human Rights, also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a contracting state has breached one or more of the human rights enumerated in the Convention or its optional protocols to which a member state is a party. The European Convention on Human Rights is also referred to by the initials "ECHR". The court is based in Strasbourg, France.

Alexey Vladimirovich Pichugin is a former manager in the security department at the Russian oil company Yukos. In 2003, Russian President Vladimir Putin initiated a campaign to expropriate Yukos and to harass and punish its executives. During testimony before an international tribunal in a case challenging Russia's campaign against Yukos, in which the tribunal found the company indeed had been unlawfully expropriated, a former advisor to President Putin testified that the campaign included formation in February 2003 of “a special unit [that] was set up to fabricate evidence” and to “launch the Government attack [against Yukos] under the guise of ‘legitimate’ court proceedings". Pichugin faced multiple trials, which have been determined by the European Court of Human Rights to have been unfair and in violation of his human rights. His case has been described as a politically motivated attempt to obtain false evidence against Yukos executives Mikhail Khodorkovsky and Leonid Nevzlin and Pichugin is said to be “the longest-serving political prisoner in Russia".

<i>A v Secretary of State for the Home Department</i> UK human rights case

A and others v Secretary of State for the Home Department[2004] UKHL 56 is a UK human rights case heard before the House of Lords. It held that the indefinite detention of foreign prisoners in Belmarsh without trial under section 23 of the Anti-terrorism, Crime and Security Act 2001 was incompatible with the European Convention on Human Rights.

The Church of Scientology Moscow v Russia [2007] ECHR 258 is a European Court of Human Rights case, concerning Article 11 of the Convention. In the case the European Court of Human Rights in Strasbourg condemned Moscow City Government's refusal to consider the Church of Scientology of Moscow for registration as a religious organisation, and as a result found that Russia had violated the rights of the Church of Scientology under Articles 11 when "read in the light of Article 9". Specifically, the Court determined that, in denying consideration of registration to the Church of Scientology of Moscow, the Moscow authorities "did not act in good faith and neglected their duty of neutrality and impartiality vis-à-vis the applicant's religious community". The Court also awarded the Church €10,000 in respect of non-pecuniary damage and €15,000 for costs and expenses.

Human rights in Ukraine is a highly contested topic. Since 2017, Freedom House has given Ukraine ratings from 60 to 62 on its 100-point scale, and a "partly free" overall rating. Ratings on electoral processes have generally been good, but there are problems with corruption and due process.

Soering v United Kingdom 161 Eur. Ct. H.R. (1989) is a landmark judgment of the European Court of Human Rights (ECtHR) which established that extradition of a German national to the United States to face charges of capital murder violated Article 3 of the European Convention on Human Rights (ECHR) guaranteeing the right against inhuman and degrading treatment. In addition to the precedence established by the judgment, the judgment specifically resulted in the United States committing to not seek the death penalty against the German national involved in the case, and he was eventually extradited to the United States.

Article 8 of the European Convention on Human Rights provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". The European Convention on Human Rights (ECHR) is an international treaty to protect human rights and fundamental freedoms in Europe.

Article 3 of the European Convention on Human Rights prohibits torture, and "inhuman or degrading treatment or punishment".

Article 3 – Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 5 of the European Convention on Human Rights provides that everyone has the right to liberty and security of person. Liberty and security of the person are taken as a "compound" concept - security of the person has not been subject to separate interpretation by the Court.

Article 5 – Right to liberty and security

1. Everyone has the right to liberty and security of person. No one shall be deprived of her/his liberty save in the following cases and in accordance with a procedure prescribed by law:

2. Everyone who is arrested shall be informed promptly, in a language which she understands, of the reasons for her arrest and of any charge against her.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of her detention shall be decided speedily by a court and her release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.

Baysayeva v. Russia was an April 5, 2007, European Court of Human Rights ruling in the case of forced disappearance of a Chechen man Shakhid Baysayev, which unanimously held Russia responsible for serious violations of the European Convention on Human Rights. The decision was the latest in a series of judgements against Russia in cases connected to the war in Chechnya.

Chahal v. United Kingdom was a 1996 judgment of the European Court of Human Rights which applied Article 3 of the European Convention on Human Rights, prohibiting the deportation of Sikh separatist Mr Chahal to India because of the risk of violations of Article 3, in the form of torture or inhuman or degrading treatment or punishment.

<span class="mw-page-title-main">Criminal cases against supporters of Yulia Tymoshenko</span>

Criminal cases against supporters of Yulia Tymoshenko — numerous criminal cases against supporters of Yulia Tymoshenko, which have been launched in Ukraine since May 2010, after the arrival to power of Viktor Yanukovych. In all those cases, the General Procurator's Office does not charge Tymoshenko's associates with «stealing or appropriating funds», none of them were charged with taking or paying bribes — mainly, they are accused of «abuse of office» and «exceeding official powers», see paragraph 2 of the PACE resolution of 27 January 2012. As for those cases, there exist several statements by the EU, the USA, the Human Right organizations, public organizations both within Ukraine and from Diaspora which indicate the political constituency of all those cases. Nevertheless, representatives of the Party of Regions insist that «the political constituency» is absent.

Yukos shareholders v. Russia are several international court and arbitral cases seeking compensation from the government of Russia to the former shareholders of Yukos based on the claim that Russian courts were not acting in good faith in launching tax evasion criminal proceedings against Yukos, which led to the bankruptcy of the company.

Assanidze v. Georgia is a decision of the European Court of Human Rights concerning the illegal incarceration of a Georgia national by the Ajarian authorities in violation of the European Convention on Human Rights. In 2004 the Court found in favour of Assanidze, recognising breaches to his right to liberty and right to a fair hearing under European Convention on Human Rights. As a result, the Court ordered that Assanidze be released "at the earliest possible date" and awarded €150,000 in damages. It was the first case against Georgia ruled upon by the European Court of Human Rights.

In September 1967, Denmark, Norway, Sweden and the Netherlands brought the Greek case to the European Commission of Human Rights, alleging violations of the European Convention of Human Rights (ECHR) by the Greek junta, which had taken power earlier that year. In 1969, the Commission found serious violations, including torture; the junta reacted by withdrawing from the Council of Europe. The case received significant press coverage and was "one of the most famous cases in the Convention's history", according to legal scholar Ed Bates.

Fedotova and Others v. Russia was a case submitted by six Russian nationals to the European Court of Human Rights (ECtHR).

<i>Sargsyan v. Azerbaijan</i>

Sargsyan v. Azerbaijan was an international human rights case regarding the rights of Armenian refugees displaced from former Soviet Azerbaijan because of the conflict in Nagorno-Karabakh. The judgment of the Grand Chamber of the European Court of Human Rights on the case originated in an application against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms by Minas Sargsyan on 11 August 2006. He was forced to flee his home in the village of Gulistan in Shahumyan region of former Soviet Azerbaijan, together with his family, because of the Azerbaijani bombardments of the village and was not allowed to return and unable to get any compensation from the Azerbaijani authorities. Even though the applicant passed away in 2009, as did his widow, Lena Sargsyan, in 2014, his children, Vladimir and Tsovinar Sargsyan, represented him in court to continue the proceedings.

A. and Others v United Kingdom is a human rights case decided by the European Court of Human Rights. It unanimously held that holding prisoners indefinitely under the Anti-terrorism, Crime and Security Act 2001 was incompatible with Article 5.

References

  1. ↑ Clare Ovey and Robin White (4th ed 2006) Jacobs and White: The European Convention on Human Rights London: Oxford University Press.
  2. ↑ Donna Gomien (3rd ed, 2005) Short guide to the European Convention on Human Rights Council of Europe Publishing at 77-78.
  3. ↑ Gusinskiy v Russia (70276/01) [2004] ECHR.
  4. ↑ Luke Clements, Nuala Mole and Alan Simmons (2nd ed, 1999) European Human Rights: Taking a Case Under the Convention London: Sweet & Maxwell at 222.
  5. ↑ Marina Ilminska, Case Watch: Politics, Justice and Article 18. Retrieved 10 April 2014.
  6. ↑ Pieter van Dijk, Fried van Hoof, Arjen van Rijn, and Leo Zwaak (eds) (4th ed, 2006) Theory and Practice of the European Convention on Human Rights Intersentia: Antwerp at 1095.
  7. ↑ For an explanation of non-derogable rights, see The Resource Part II: Human Rights in Times of Emergencies. United Nations. Retrieved 16 April 2014.
  8. ↑ Luke Clements, Nuala Mole and Alan Simmons (2nd ed, 1999) European Human Rights: Taking a Case Under the Convention London: Sweet & Maxwell at 222.
  9. ↑ Volodymyr Yavorsky, Political persecution in the context of European Court of Human Rights case law. Ukrainian Helsinki Human Rights Union. Retrieved 4 May 2014.
  10. ↑ Luke Clements, Nuala Mole and Alan Simmons (2nd ed, 1999) European Human Rights: Taking a Case Under the Convention London: Sweet & Maxwell at 222.
  11. ↑ Ralph Beddard (3rd ed, 1993) Human Rights and Europe Cambridge University Press at 187-188.
  12. ↑ See The Council of Europe explanation of the doctrine.
  13. ↑ Lutsenko v Ukraine (6492/11) [2012] ECHR.
  14. ↑ Strengthening Democracy Council of Europe. Retrieved 13 April 2014.
  15. ↑ Gusinskiy v Russia (70276/01) [2004] ECHR at para 76.
  16. ↑ Tymoshenko v Ukraine (49872/11) [2013] ECHR.
  17. ↑ Yulia Tymoshenko imprisonment 'politically motivated. The Guardian. Retrieved 4 May 2014.
  18. ↑ ECHR doesn't find political motives behind Tymoshenko's arrest, says court's representative. Interfax Ukraine. Retrieved 4 May 2014.
  19. ↑ Conal Urquhart, Ukraine: Yulia Tymoshenko released as country lurches towards split. The Guardian. Retrieved 4 May 2014.
  20. ↑ Cebotari v Moldova (35615/06) [2007] ECHR.
  21. ↑ Cebotari v Moldova (35615/06) [2007] ECHR at para 48.
  22. ↑ Oferta Plus S.R.L. v Moldova (14385/04) (2006).
  23. ↑ Khodorkovskiy and Lebedev v Russia (11082/06) and (13772/05) [2013] ECHR.
  24. ↑ ECHR Press Release: Khodorkovsky v. Russia Archived 29 January 2015 at the Wayback Machine Committee for Russian Economic Freedom. Retrieved 16 April 2014.
  25. ↑ Khodorkovskiy and Lebedev v Russia (11082/06) and (13772/05) [2013] ECHR at paras 902-903.
  26. ↑ Khodorkovskiy and Lebedev v Russia (11082/06) and (13772/05) [2013] ECHR at para 899.
  27. ↑ Claire Bigg, European Court Rules That Khodorkovsky's Rights Were Violated Radio Free Europe. Retrieved 10 April 2014.
  28. ↑ Kamma v The Netherlands (4771/71) ECHR [1974].
  29. ↑ Luke Clements, Nuala Mole and Alan Simmons (2nd ed 1999) European Human Rights: Taking a Case Under the Convention London: Sweet & Maxwell at 222.
  30. ↑ Pieter van Dijk, Fried van Hoof, Arjen van Rijn, and Leo Zwaak (eds) (4th ed, 2006) Theory and Practice of the European Convention on Human Rights Intersentia: Antwerp at 1093-1095.
  31. ↑ Handyside v the United Kingdom (5493/72) [1976] ECHR 5.
  32. ↑ Ralph Beddard (3rd ed, 1993) Human Rights and Europe Cambridge University Press at 187-188.
  33. ↑ Bozano v France (9990/82) [1986] ECHR 16.
  34. ↑ United Communist Party of Turkey v Turkey (19392/92) [1998] ECHR 1, at para 62.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.