Article 18 of the European Convention on Human Rights: a toothless tiger?
In Navalnyye v. Russia, the Court rejected a complaint under Article 18 in conjunction with Articles 6 and 7 ECHR as incompatible ratione materiae with the Convention. Yet, the dissenting judges have appealed to the Court to reconsider its interpretation.
On 17 October, the European Court of Human Rights delivered a judgment in the case of Navalnyye v. Russia (Application no. 101/15). The Court found that the criminal proceedings and subsequent conviction for fraud and money laundering of Alexei and Oleg Navalnyye were in violation of Article 6 (right to a fair trial) and Article 7 (no punishment without law) of the European Convention on Human Rights (ECHR). The Court left the question of potential ulterior political motivations behind the convictions untouched by declaring the complaint of the applicants under Article 18 ECHR (limitation on use of restrictions on rights) inadmissible. Yet, the dissenting judges Keller, Dedov and Serghides encouraged the Court to rethink its interpretation of this important Convention provision.
Alexei Navalnyy is a political activist, blogger, anti-corruption campaigner and opposition leader in Russia. He has been investigating and targeting high-ranking public officials and organizing rallies and protests against State authorities. In criminal proceedings before the domestic courts, Navalnyy, together with his brother Oleg, had been convicted of fraud and money laundering. After unsuccessfully exhausting all domestic remedies, the brothers lodged an application with the Court complaining that their rights under Articles 6, 7, as well as 18 in conjunction with Articles 6 and 7 have been violated. In particular, under Article 18 in conjunction with Articles 6 and 7, they submitted that the criminal proceedings and the subsequent conviction did not follow the purpose of bringing the applicants to justice. Instead, they were aimed at curtailing Alexei Navalnyy’s political activities.
With little difficulty, the Court found a violation of Article 7 stating that the applicable provisions of the Criminal Code have been ‘extensively and unforeseeably construed to the detriment’ of the applicants. Furthermore, it observed that the examination of the applicants’ case carried out by the domestic courts was ‘flawed with arbitrariness’ and undermined the fairness of the criminal proceedings in a fundamental way and, therefore, violated Article 6. Regarding the final plea of the applicants under Article 18 in conjunction with Articles 6 and 7, the Court briefly observed that the provisions of Article 6 and Article 7 ‘in so far as relevant to the present case, do not contain any express or implied restrictions that may form the subject of the Court’s examination under Article 18’. Therefore, the Court concluded that the complaint under Article 18 in conjunction with Articles 6 and 7 ‘must be rejected as incompatible ratione materiae with the provisions of the Convention’.
Article 18 states that ‘[t]he 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’. In other words, this article is violated when a State restricts Convention rights for purposes different to the ones foreseen by the Convention. It concerns misuse of powers and provides for an accessory protection, meaning that Article 18 can only be invoked in conjunction with other Convention rights. However, the Court’s rather inconsistent case law does not provide for clear guidelines on which Articles of the Convention can be invoked in conjunction with Article 18.
In their partly dissenting opinions, judges Keller and Dedov on the one hand, and judge Serghides on the other hand, argue that the Court should have considered complaints brought under Article 18 in conjunction with Article 6 admissible. In order to support their observations, they refer to the drafting history of the Convention, as well as the purpose of Article 18.
The travaux préparatoires of the Convention support a broad interpretation of Article 18 describing it as a provision designed to preserve democratic values and protect the rights of individuals from undemocratic, totalitarian regimes. Such regimes, as the dissenting judges argue, tend to find excuses to restrict individual rights based on ‘State reasons’ rather than on common good and general interests. Especially criminal proceedings might serve as effective means of silencing opposition leaders, political activists and dissidents. However, the question of ulterior motives a State follows by means of criminal proceedings is an issue separate from the scope of Article 6. In fact, pursuing such motives constitutes a particular form of an abuse or a misuse of powers that Article 18 was intended to prevent. Therefore, dismissing a complaint brought under Article 18 in conjunction with Article 6 as inadmissible seems to diminish the original purpose and the significance of Article 18. Moreover, even though Article 6 does not entail a separate paragraph referring to justifiable restrictions thereof, similar to those provided for in Articles 8-11, according to both its wording and the Court’s case law, Article 6 contains inherent or implied restrictions and does not protect an absolute right. This indicates, as the dissenting judges observe, that it could be invoked in conjunction with Article 18.
Yet, it appears that the question whether an applicant can bring a complaint under Article 18 in conjunction with Article 6 will stay unanswered, at least in the short run: in its recent judgment Ilgar Mammadov v. Azerbaijan (No. 2) (Application no. 919/15, 16 November 2017) ‘the Court observe[d] that the question whether Article 6 of the Convention contains any express or implied restrictions which may form the subject of the Court’s examination under Article 18 of the Convention remains open’. Although vague and rather dissatisfactory, this seems to be a (temporary) reply from the majority to the opinions of the dissenters in the Navalnyye v. Russia case.
As to why the Court might be reluctant to clarify the interpretation and application of Article 18 (in conjunction with Article 6), the dissenting judges in the present case observe that such a clarification would require relinquishing the case to the Grand Chamber. This might delay the judgment delivery for a considerable amount of time. However, in cases involving Article 6, unfair proceedings on a national level might often lead to a subsequent unlawful detention of the applicant. Therefore, the Court might be incentivized to rule on the issue as soon as possible rather than prolong the proceedings and, in turn, a potentially unlawful detention. Still, the Court is increasingly confronted with complaints alleging violations of Article 18 in general, and invoked in conjunction with Article 6 in particular. Therefore, a clarification on the application and the interpretation of Article 18 would be more than appreciated.