Rule of law in peril? Checking states’ misuse of power–implications and consequences of article 18 violations

Donald, Alice ORCID: https://orcid.org/0000-0001-8541-3530 and Leach, Philip ORCID: https://orcid.org/0000-0002-6067-8986 (2022) Rule of law in peril? Checking states’ misuse of power–implications and consequences of article 18 violations. In: Liber Amicorum Robert Spano. Council of Europe, Strasbourg, pp. 401-413. ISBN 978-2-8072-0927-5. [Book Section] (Published online first)

Abstract

Article 18 of the European Convention on Human Rights prevents state authorities from restricting substantive rights contained in the Convention for ulterior purposes, and has been applied, in particular, in political prosecution cases – in other words, where state bodies have targeted individuals in bad faith. At its core, the object and purpose of Article 18 is to prohibit the misuse of power. This short contribution to the Liber Amicorum to Robert Spano (which does not, of course, aim to be comprehensive) discusses the main elements of Article 18 as they have been interpreted by the Court and considers the contexts in which such “bad faith” claims have been successfully or unsuccessfully raised, before turning to the question of the import and impact of these cases.We shall see that a once insurmountable standard and burden of proof on applicants have given way to a more flexible and contextual approach to assessing bad faith, but that judicial dissension remains about, inter alia, the requirement for ulterior motives to be the predominant reason for restricting rights and the criteria for applying this test in particular cases.We conclude that the developing Article 18 jurisprudence signifies an appropriate response to the increasingly authoritarian and repressive measures being meted out in some parts of Europe.

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