Last Updated on April 21, 2019 by LawEuro
Overview of the Case-law of the ECHR 2016
Other Convention provisions
Limitation on use of restrictions on rights (Article 18)
The Navalnyy and Ofitserov v. Russia[290] judgment concerned the applicability of Article 18 of the Convention when relied on in conjunction with Articles 6 and 7.
The applicants relied on Article 18 in conjunction with Articles 6 and 7. In their view, they had been charged, prosecuted and convicted of conspiracy to steal assets for reasons other than determining their guilt. The first applicant was an anti-corruption campaigner, who had unsuccessfully stood for election as mayor of Moscow in 2011. The applicants contended that the first applicant’s prosecution and conviction were intended to curtail his political activities. The Court found that Article 6 of the Convention had been violated on account of the unfairness of the proceedings, and that this conclusion dispensed it from having to examine separately the complaint under Article 7 of the Convention.
The judgment is of interest in that the Court had to address the applicability of Article 18 in relation to the other Articles relied on. Article 18 states:
“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”
The Court has in previous cases found a breach of Article 18 in combination with Article 5, the latter provision setting out clear and exhaustive circumstances in which the liberty of the individual may be restricted with justification (see, for example, Gusinskiy v. Russia[291]; Cebotari v. Moldova[292]; Lutsenko v. Ukraine[293]; Tymoshenko v. Ukraine[294]; and Ilgar Mammadov v. Azerbaijan[295]).
The structure of Article 6 (and Article 7) is different, as confirmed by the Court in the instant case. In finding that the applicants’ complaint was incompatible ratione materiae with the provisions of the Convention relied on, it observed that Articles 6 and 7 did not contain any express or implied restrictions that could form the subject of the Court’s examination under Article 18. At the same time, the Court added the caveat that this conclusion was to be seen as relevant to the applicants’ case. It is noteworthy in this connection that, in finding a breach of Article 6, the Court highlighted the failure of the domestic courts to address the obvious link between the first applicant’s public activities and the decision to prosecute him and the second applicant.
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The Rasul Jafarov v. Azerbaijan[296] judgment is interesting as regards the factual elements which can lead to a conclusion that a restriction under domestic law was applied for reasons other than those prescribed by the Convention.
The applicant, a prominent human rights activist in Azerbaijan, was arrested in 2014 on various financial charges. He was detained until his conviction and imprisonment in January 2015.
He mainly alleged, relying on Article 18 in conjunction with Article 5, that he had been arrested and detained to punish his criticism of the government, to silence him as an NGO activist and human rights defender and to discourage civil-society activity in Azerbaijan. His arrest came a few months after the delivery of the Ilgar Mammadov[297] judgment, cited above, in which the Court had found that the NGO activist in that case had been arrested and charged in order to silence or punish him, in violation of Article 18 of the Convention.
In the present case, the Court found, inter alia, that the charges against the applicant were not based on a “reasonable suspicion” (violation of Article 5 § 1) and that he had been arrested and detained for reasons other than those prescribed by the Convention (violation of Article 18 in conjunction with Article 5).
The judgment is of interest as regards the elements relied upon by the Court for finding, under Article 18, that the restrictions had been applied for reasons not prescribed by the Convention.
In previous cases, the Court was able to rely on a particular fact of the individual case to reach this conclusion: for example, the plea bargain concluded in Gusinskiy[298]; the application to this Court in Cebotari[299]; particular features of the cases retained against the applicants in Lutsenko[300] and Tymoshenko[301]; and the applicant’s blog entries in Ilgar Mammadov, all cited above.
In the present case, the Court relied on broader contextual factors (as well as on the absence of “reasonable suspicion”) to find that the applicant had been arrested and detained for reasons other than those prescribed by the Convention. These factors were the “increasingly harsh and restrictive legislative regulation of NGO activity and funding”; the narrative of high-ranking officials and pro-government media to the effect that NGOs and their leaders (including the applicant) were foreign agents and traitors; and the fact that several notable human-rights activists, who had also cooperated with international organisations protecting human rights, had been similarly arrested. The Court considered that these factors supported the applicant’s and the third-party interveners’ argument to the effect that the applicant’s arrest and detention were part of a larger campaign to “crack down on human rights defenders in Azerbaijan, which had intensified over the summer of 2014”. The Court concluded, therefore, that the applicant had been arrested and detained “in order to silence and punish [him] for his activities in the area of human rights” and found a violation of Article 18 in conjunction with Article 5 of the Convention.
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290. Navalnyy and Ofitserov v. Russia, nos. 46632/13 and 28671/14, 23 February 2016.
291. Gusinskiy v. Russia, no. 70276/01, ECHR 2004-IV.
292. Cebotari v. Moldova, no. 35615/06, 13 November 2007.
293. Lutsenko v. Ukraine, no. 6492/11, 3 July 2012.
294. Tymoshenko v. Ukraine, no. 49872/11, § 299, 30 April 2013.
295. Ilgar Mammadov v. Azerbaijan, no. 15172/13, 22 May 2014.
296. Rasul Jafarov v. Azerbaijan, no. 69981/14, 17 March 2016.
297. Ilgar Mammadov v. Azerbaijan, no. 15172/13, 22 May 2014.
298. Gusinskiy v. Russia, no. 70276/01, ECHR 2004-IV.
299. Cebotari v. Moldova, no. 35615/06, 13 November 2007.
300. Lutsenko v. Ukraine, no. 6492/11, 3 July 2012.
301. Tymoshenko v. Ukraine, no. 49872/11, 30 April 2013.
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