EUROPEAN COURT CALLS FOR A RE-THINK OF ARTICLE 18 TO MEET THE CHALLENGES OF 'POLITICAL JUSTICE'

In Tchankotadze v Georgia, a Georgian Official's claim that criminal proceedings had been brought against him for 'ulterior motives', was rejected by the European Court of Human Rights ("ECtHR") but judges called for a re-examination of the controversial Article 18 jurisprudence, and in particular the standard of proof the applicant is required to meet.

Article 18 states that '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 provision means that even if a right (such as the right to liberty enshrined in Article 5) is lawfully interfered with, then there will still be a breach of the convention if that interference is in bad faith or politically motivated. It is a 'parasitic'right in the sense that it can only be asserted in conjunction with another right.

The problems with the jurisprudence on Article 18 can be found in the very foundations of ECtHR. The ECtHR can only impose its judgments on states who are Members of the Council of Europe, an international organization that they can join and leave voluntarily. It is a court that must ensure that the states it adjudicates on are sufficiently appeased to maintain their membership of the Council of Europe in order to ensure its own relevancy and survival. It is an inherently political judicial institution.

The structural flaws with the ECtHR led to it holding that there is a very high burden of proof on the applicant to prove a violation of Article 18. Article 18 requires the ECtHR not to sanction a states action but its motives, and the court stated that 'the whole structure of the Convention rests on the general assumption that public authorities in the member States acted in good faith'. It therefore ruled in Tymoshenko v Ukraine that an applicant must 'convincingly show that the real aim of the authorities was not the same as proclaimed'. It is a standard of proof that has been described as 'exacting' and is very difficult to meet. The number of times that the Court has found a violation of Article 18 is consequently very small.

The problematic jurisprudence on Article 18 has led to commentators calling for a Grand Chamber decision on the matter to resolve the issue and now judges in the Court in Tchankotadze v Georgia have given their support for this approach. In their Joint Concurring Opinion, Judges Sajó, Tsotsoria and Pinto De Albuquerque stated that the 'standard of proof for Article 18 violations is prohibitively high' and called upon their fellow judges to 'reconsider this matter at the earliest possible opportunity'. Judge Kuris stated that he had 'to put it mildly, very serious doubts' about the standard of proof he was required to apply, which was 'mountain high'.

With judicial voices joining the chorus calling for a change in the approach to Article 18 it seems only a matter of time before the Grand Chamber rules on it. It remains to be seen how the approach to the standard of proof will change and how the Court will balance it's judicial obligations and political considerations.