Last Updated on May 9, 2019 by LawEuro
Overview of the Case-law of the ECHR 2018
Restrictions not prescribed by the Convention (Article 18)
The judgment in Navalnyy v. Russia[189] develops the case-law on the link between the lack of “legitimate aim” in the sense of Article 11 and ulterior purpose as regards Article 18.
The applicant was a political activist, anti-corruption campaigner and popular blogger, as well as one of the most significant opposition figures in Russia. This case concerns seven occasions, between March 2012 and February 2014, when he was arrested, provisionally detained and convicted of administrative offences on account of his alleged participation in unauthorised but peaceful public gatherings. On the fifth occasion, the applicant was penalised when he left a stationary demonstration in a group of people. On the sixth occasion, he found himself in a group of activists in front of a courthouse because they had been denied entry to the court hearing.
The Grand Chamber found a violation of Article 11.
For the first time, the Court found a violation of Article 18 in conjunction with an Article (Article 11) other than Article 5 of the Convention. This combination is possible since Article 11 permits restrictions of the kind to which Article 18 refers.
The Grand Chamber considered, referring to the judgment in Merabishvili v. Georgia[190], that Article 18 represented a “fundamental aspect” of the case to be examined separately. It also clarified that the lack of a legitimate aim (fifth and sixth arrests) could not amount, of itself, to a violation of Article 18, so it was still necessary to examine whether there was an identifiable ulterior purpose. In addition, and regarding the five occasions for which a legitimate aim had been identified, it was still necessary to examine whether there had been a plurality of purposes.
Three elements weighed heavily in the Court’s finding of a violation. In the first place, the Grand Chamber’s approach was to examine the sequence of arrests. It found that, on the one hand, the pretexts for the seven arrests became progressively more implausible while, on the other, the degree of potential or actual disorder as well as the role of the applicant had diminished, all of this culminating in the fifth and sixth arrests for which no legitimate aim had been found. The Merabishvili case-law, to the effect that the predominant purpose might change over time, was particularly relevant here. Secondly, the Court relied on contextual matters, concerning the applicant directly and the more general situation. As noted above, when arresting the applicant on the occasions in issue the authorities were aware from this Court’s case-law that the impugned practices were incompatible with the Convention. Also of relevance was the sequence of events that unfolded in two sets of criminal proceedings conducted in parallel against the applicant (Navalnyy and Ofitserov v. Russia[191] and Navalnyye v. Russia[192]). More generally, there was “converging contextual evidence” corroborating the view that the authorities were becoming increasingly severe in their response to the conduct of the applicant as an opposition leader and of other political activists and, indeed, in their approach to public assemblies of a political nature. In particular, legislative changes (examined in and adopted since the judgment in Lashmankin and Others v. Russia[193]) had continued to restrict freedom of assembly, about which concerns had been expressed by several Council of Europe bodies. Thirdly, the Grand Chamber considered that targeting the applicant as an opposition politician, affecting as it did not only fellow activists or supporters but the very essence of democracy, would amount to an ulterior purpose of “significant gravity” (see the “nature and degree of reprehensibility of the alleged ulterior purpose”, Merabishvili, cited above, § 307). The Grand Chamber concluded that it had been established beyond reasonable doubt that the fifth and sixth arrests pursued an ulterior purpose within the meaning of Article 18 of the Convention, namely to suppress political pluralism which forms part of effective political democracy governed by the rule of law.
Additionally, and of particular relevance to the respondent State, the Grand Chamber indicated under Article 46 certain general measures to be taken. It drew on a pattern of similar violations cited and established in Lashmankin and Others, on the violation of Article 11 in the present case (linked as it was to the structural inadequacy of the regulatory framework), as well as on the findings under Article 18 of the Convention.
In Selahattin Demirtaş v. Turkey (no. 2)[194] the Court examined Article 18 of the Convention in conjunction with Article 5 § 3.
The applicant was an elected member of the National Assembly and one of the co-chairs of the Peoples’ Democratic Party (HDP), a left-wing pro-Kurdish political party. On 20 May 2016 an amendment to the Constitution was adopted whereby parliamentary immunity was lifted in all cases where requests for its lifting had been transmitted to the National Assembly prior to the date of adoption of the amendment. The applicant was one of 154 parliamentarians affected by the constitutional amendment. On 4 November 2016 he was arrested on suspicion of membership of an armed terrorist organisation and inciting others to commit a criminal offence. The applicant is still in detention awaiting trial. His parliamentary mandate expired on 24 June 2018.
The applicant contended in essence that his detention was intended to silence him because of his opposition to the government in power. The Court found that there had been a breach of Article 18 in conjunction with Article 5 § 3. It is significant that this is the first case in which the Court has found that Article 18 can be relied on in conjunction with Article 5 § 3 (as opposed to Article 5 § 1), and it is also of interest that the Court did not consider it necessary to dwell on the applicability of Article 18, confining itself to noting that “it was a fundamental aspect of the … case which had not been examined under Article 5 of the Convention or Article 3 of Protocol No. 1”. Taking as its basis the principles set out in Merabishvili v. Georgia[195], the Court’s inquiry was directed at ascertaining whether the evidence at its disposal proved beyond reasonable doubt that the predominant purpose behind the prolongation of the applicant’s detention was to remove him from the political scene, bearing in mind its finding that his arrest and detention were at all times lawful in terms of Article 5 § 1 (Articles 100 et seq. of the Criminal Code) and Article 5 § 1 (c) (the persistence of “reasonable suspicion” that he had committed an offence). The Court drew in this connection on its findings under Article 5 § 3 and Article 3 of Protocol No. 1 and, in line with the approach in Merabishvili (cited above), the surrounding political and social context as described by, among others, the third-party interveners. This contextual analysis led it to conclude that there was a political purpose behind the applicant’s continuing detention. (The Court’s analysis covered the applicant’s political role, the tense political situation, speeches targeting the applicant and his party, the timing of his continued detention (it coincided with a highly important referendum and a presidential election), an emerging pattern of silencing opposition members of parliament, etc.) The Court further found that that purpose was the predominant one, taking into account that in continuing situations the predominant purpose may vary over time and having regard to factors such as the nature and degree of reprehensibility of the alleged ulterior purpose. The Court’s conclusion is noteworthy:
“273. Having regard to the foregoing, and in particular the fact that the national authorities have repeatedly ordered the applicant’s continued detention on insufficient grounds consisting simply of a formulaic enumeration of the grounds for detention provided for by law, the Court finds that it has been established beyond reasonable doubt that the extensions of the applicant’s detention, especially during two crucial campaigns, namely the referendum and the presidential election, pursued the predominant ulterior purpose of stifling pluralism and limiting freedom of political debate, which is at the very core of the concept of a democratic society …”
Significantly, the Court ruled under Article 46 of the Convention that the respondent State must take all necessary measures to put an end to the applicant’s pre-trial detention.
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189. Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, 15 November 2018. See also under Article 11 (Freedom of peaceful assembly) above.
190. Merabishvili v. Georgia [GC], no. 72508/13, 28 November 2017.
191. Navalnyy and Ofitserov v. Russia, nos. 46632/13 and 28671/14, 23 February 2016.
192. Navalnyye v. Russia, no. 101/15, 17 October 2017.
193. Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, 7 February 2017.
194. Selahattin Demirtaş v. Turkey (no. 2), no. 14305/17, 20 November 2018 (not final). See also under Article 5 § 3 (Length of pre-trial detention) and Article 3 of Protocol No. 1 (Free expression of the opinion of the people) above.
195. Merabishvili v. Georgia [GC], no. 72508/13, §§ 257-58, 28 November 2017.
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