@ARTICLE{26583261_337257909_2019, 
	author = {A.E. Guziy}, 
	keywords = {, European Court of Human Rights, mechanism of interpretation, restriction of rights by the state, high standard of proof, subsidiary application of the ECHR article, conflict of interests of the state, absolute demand for restriction of rightsunification of the ECHR practice},
	title = {The European Court of Human Rights Interpretation of the European Convention Article 18: Issues and Conclusions},
	journal = {},
	year = {2019},
	number = {5},
	pages = {32-53},
	url = {https://law-journal.hse.ru/en/2019--5/337257909.html},
	publisher = {},
	abstract = {Among the articles of the European Convention for the Protection of Human Rights andFundamental Freedoms, article 18 sets forth the bounders of limitation of conventionalrights. However, its practice for almost half a century of the work of the European Court ofHuman 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 interpretationof the Court in establishing this norm. Meanwhile, during the period of the beginning ofthe 21st century, one of the most well-known cases on protecting the interests of highrankingpoliticians 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, wereestablished 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 EuropeanCourt, there are a number of features which characterize the process of proving Article 18of the ECHR. Among them is a subsidiary application of it in combination with others, a highstandard of proof based on the presumption of good faith of the state, as well as featuresof the object and means of proof. A thorough analysis of the case «Kurt v. Turkey» showedthe imperfection of the mechanism of a high standard of proof, leaving the complainantone-on-one with the national authorities of the state. Taking into account the requirementof applying to the European Court, it is only after exhausting the means of domesticprotection that the Court develops a practice in which the Applicant, despite everything,cannot prove its rightness simply because the offending state has the opportunity toconceal 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 appearanceof the article under study in cases of persecution of opposition leaders, heads of stateand private corporations. In the Court’s interpretation activities, a mechanism is foundfor calculating the «conflict of state interests», formulated by analogy with well-knowninstitution of criminal law.For citation: Guzyi A.E. (2019) The European Court of Human Rights Interpretation of the European Convention Article 18: Issues and Conclusions. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 5, pp. 32-53 (in Russian) DOI: 10.17323/2072-8166.2019.5.32.53},
	annote = {Among the articles of the European Convention for the Protection of Human Rights andFundamental Freedoms, article 18 sets forth the bounders of limitation of conventionalrights. However, its practice for almost half a century of the work of the European Court ofHuman 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 interpretationof the Court in establishing this norm. Meanwhile, during the period of the beginning ofthe 21st century, one of the most well-known cases on protecting the interests of highrankingpoliticians 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, wereestablished 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 EuropeanCourt, there are a number of features which characterize the process of proving Article 18of the ECHR. Among them is a subsidiary application of it in combination with others, a highstandard of proof based on the presumption of good faith of the state, as well as featuresof the object and means of proof. A thorough analysis of the case «Kurt v. Turkey» showedthe imperfection of the mechanism of a high standard of proof, leaving the complainantone-on-one with the national authorities of the state. Taking into account the requirementof applying to the European Court, it is only after exhausting the means of domesticprotection that the Court develops a practice in which the Applicant, despite everything,cannot prove its rightness simply because the offending state has the opportunity toconceal 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 appearanceof the article under study in cases of persecution of opposition leaders, heads of stateand private corporations. In the Court’s interpretation activities, a mechanism is foundfor calculating the «conflict of state interests», formulated by analogy with well-knowninstitution of criminal law.For citation: Guzyi A.E. (2019) The European Court of Human Rights Interpretation of the European Convention Article 18: Issues and Conclusions. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 5, pp. 32-53 (in Russian) DOI: 10.17323/2072-8166.2019.5.32.53}
}