The European Court of Human Rights Interpretation of the European Convention Article 18: Issues and Conclusions

Abstract

Among the articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms, article 18 sets forth the bounders of limitation of conventional rights. However, its practice for almost half a century of the work of the European Court of Human Rights did not constitute a percentage of the total amount of cases that it reviewed. As a result, there is no research literature analyzing the mechanisms of interpretation of the Court in establishing this norm. Meanwhile, during the period of the beginning of the 21st century, one of the most well-known cases on protecting the interests of high-ranking politicians and heads of national corporations became one of them. Moreover, most of these procedures, which ended in the recognition of a violation of Article 18, were established by the Court in respect of the former Soviet states: Russia, Ukraine, Moldova, Georgia, Azerbaijan, Latvia. As a result of the analysis of the case law of the European Court, there are a number of features which characterize the process of proving Article 18 of the ECHR. Among them is a subsidiary application of it in combination with others, a high standard of proof based on the presumption of good faith of the state, as well as features of the object and means of proof. A thorough analysis of the case «Kurt v. Turkey» showed the imperfection of the mechanism of a high standard of proof, leaving the complainant one-on-one with the national authorities of the state. Taking into account the requirement of applying to the European Court, it is only after exhausting the means of domestic protection that the Court develops a practice in which the Applicant, despite everything, cannot prove its rightness simply because the offending state has the opportunity to conceal its «unfairness», which ends with a formal refusal to review violating Article 18. The features of the object and the means of proof largely predetermine the appearance of the article under study in cases of persecution of opposition leaders, heads of state and private corporations. In the Court's interpretation activities, a mechanism is found for calculating the «conflict of state interests», formulated by analogy with well-known institution of criminal law.