Strasbourg Observers

Merabishvili, Mammadov and Targeted Criminal Proceedings: Recent Developments under Article 18 ECHR

December 15, 2017

By Corina Heri, postdoctoral researcher at the University of Amsterdam

On 28 November, the Grand Chamber issued a judgment in Merabishvili v. Georgia. Twelve days earlier, the Fifth Section issued its judgment in Ilgar Mammadov (No. 2) v. Azerbaijan. Both judgments concern, among other provisions of the ECHR, its often-overlooked Article 18, which prohibits States from restricting Convention rights for illegitimate purposes. The Court has increasingly displayed an awareness of the need to clarify and amend its Article 18 case-law, as shown by the wealth of separate opinions written on the matter,[1] and it took Merabishvili as an opportunity to do so. This post looks at the Article 18 issues raised in the two judgments, and fits these into the steady and necessary, although incomplete, evolution of the Article 18 case-law.

An introductory note on Article 18 ECHR

Article 18 ECHR allows the Court to establish that Member States have limited non-absolute Convention rights for illegitimate reasons, usually reasons of State and the suppression of dissent. Like Article 14 ECHR, Article 18 is a non-autonomous provision, and must be invoked together with another Convention right.

In an article published in 2016, Helen Keller and I examined the Court’s Article 18 case-law and argued, based on the travaux préparatoires, that the provision’s purpose is to safeguard against undemocratic tendencies that, while posing as legitimate rights restrictions, in fact abuse, undermine and erode human rights and the principles of democracy.[2] We argued that the Court could not always blindly expect States to fulfill their Convention obligations in good faith, and needed to invigorate its case-law by amending its extremely high burden of proof. We welcomed the apparent shift away from the argument that targeted criminal proceedings against political actors could not violate Article 18 if they had some legitimate basis – a ‘healthy core’ – and thus the problem that measures with a ‘plurality of purpose’ were considered not to violate the provision. We also argued for a shift away from certain cases in which the Court had held that Article 18 could not be invoked together with Article 6 ECHR because of the absence of textual provision for limitations in the latter article.

By taking these steps, we argued, the Court could turn Article 18 into a tool for sending a strong message to States seeking to undermine democratic processes, thus staying true to a task that constitutes part of its raison d’être, namely the protection of democracy.[3] The present post will draw on these arguments, though it represents my own thoughts on the matter and does not claim to speak for Judge Keller.

A very brief introduction to the facts of the two cases

Ilgar Mammadov concerned criminal proceedings brought against a prominent Azerbaijani opposition politician. Following protests in 2013 and his publication of a number of critical blog posts, Mr Mammadov was convicted of the crime of mass disorder and sentenced to seven years’ imprisonment. He previously brought a case to the Court concerning his arrest and pre-trial detention in these same proceedings. In the resulting first Ilgar Mammadov v. Azerbaijan case, the Court found that the applicant’s arrest and detention had been intended to silence him, finding violations of Articles 5, 6, and 18 (in conjunction with Article 5) ECHR.

Merabishvili concerned a former Georgian Prime Minister and opposition leader, who faced criminal proceedings inter alia for abuse of power and argued that his pre-trial detention aimed at removing him from political life. He further alleged that he had, after his clandestine nocturnal removal from his cell, been questioned by the Chief Prosecutor and threatened with a worsening of his situation if he did not provide information about unrelated proceedings. In 2014, the applicant was found guilty of the majority of charges against him. The Chamber, in 2016, held inter alia that there had been a violation of Article 18 taken together with Article 5 § 1, given that pre-trial detention had been used both for a legitimate purpose and to pressure the applicant to reveal information about unrelated proceedings.

The findings under Article 18

Ilgar Mammadov

In Ilgar Mammadov, the Court interpreted the applicant’s Article 18 complaint as being brought in conjunction with Article 6 ECHR. The Court then noted that Article 18 can only be invoked together with limitable rights, and that the case-law leaves open the question of whether Article 6 permits “any express or implied restrictions” (§ 261). Taking into account this and its findings under Article 6 § 1, the Fifth Section anonymously held that there was no need to give a separate ruling under Article 18.

Judges Nussberger, Tsotsoria, O’Leary and Mits issued a joint concurring opinion on the Article 18 aspect. Agreeing with the majority that it was not necessary to examine this complaint, they argued that the majority had failed to provide reasons for this outcome. Specifically, they noted the inconsistencies in the case-law regarding whether Article 18 can be invoked together with Article 6 (§ 6).


The Grand Chamber used Merabishvili as an opportunity to clarify its case-law under Article 18, rendering a 143-page new leading judgment premised on the distinction of proof of an ulterior purpose from the assessment of measures based on a plurality of purposes. On that basis, it created an entirely new standard for deciding Article 18 claims where there is a plurality of (permitted and non-permitted) purposes. Plurality of purpose, it held, does not necessarily preclude finding a violation of Article 18: the crux of the matter is to determine which was the predominant purpose by evaluating all of the circumstances as they evolve over time; if it was the illegitimate one, then Article 18 is violated (§ 305). Some circumstances to consider are “the nature and degree of reprehensibility of the alleged ulterior purpose” and the fact that “the Convention was designed to maintain and promote the ideals and values of a democratic society governed by the rule of law” (§ 307). Where a restriction of rights is continuous, the reason for it may change over time, but the chief purpose of such a restriction must remain legitimate throughout (§ 351).

Regarding the question of proof, the Court held that there is no reason why it should bind itself to a requirement of direct proof under Article 18, or apply a special standard of proof (§ 316). To the contrary, it found that it can rely on circumstantial evidence, defined as “information about the primary facts, or contextual facts or sequences of events which can form the basis for inferences about the primary facts”, with support and corroboration by third party reports and judicial decisions, and can draw inferences from this information (§ 317). While there was no direct evidence that the authorities used the applicant’s pre-trial detention as leverage, it held, he – being in custody – “was hardly in a position to provide such evidence”; however, other elements, including witness accounts, corroborated his account. Evaluating all the information, the Court considered the applicant’s account proven (§ 350). The Court held that the predominant purpose for the applicant’s detention had changed over time, eventually becoming to obtain information (§ 353). The Court therefore found, by nine votes to eight, a breach of Article 18 in conjunction with Article 5 § 1.

Comments, or: “if you want to beat a dog, you can always find a stick”

The Merabishvili judgment did two main things. First, it tackled and revised the burden of proof under Article 18. This is to be welcomed, even though future case-law will have to show how this will be applied in practice and how applicant-friendly it will be, especially given the arguments below. In particular, it is striking that the Court disregarded certain contextual elements, such as the fact that other members of the applicant’s party were granted asylum abroad.

Secondly, the Court introduced the predominant purpose test, which is meant to help the Court to determine which aim is predominant where a rights restriction has both legitimate and illegitimate purposes. In doing so, the Court implicitly takes up the ‘healthy core’ argument, or in other words the idea that – as long as the legitimate purpose of an interference is strong enough – additional abusive purposes can be tolerated. As Başak Çalı recently argued, the predominant purpose test thereby normalizes bad faith “so long as it is not a predominant reason for restricting rights.” This is also the argument made by Judges Yudkivska, Tsotsoria and Vehabović in their joint concurring opinion (§ 19), and one with which I agree. The concurring judges considered the predominant purpose test to be lacking in objective criteria for assessing multipurpose interferences, and as inducing States to hide their illegitimate aims better (§ 37). Judge Serghides, in his opinion, also argued that a democratic society cannot tolerate balancing of legitimate and illegitimate purposes (§ 34).

In other words, the majority’s contested approach – or that, at least, of five judges in the majority – displays tolerance for rights limitations based on illegitimate purposes, as long as a more predominant ‘healthy core’ or legitimate aim is present. This is problematic because the abusive limitation of rights can often readily be explained by means of a legitimate aim: as the saying goes, “if you want to beat a dog, you can always find a stick”.[4] Proving not only that there was an illegitimate purpose, but also that it was the predominating one, will prove very difficult for applicants. This covert continuation of the ‘healthy core’ approach not only potentially legitimizes many forms of abusive limitation, but it replaces one test that was nearly impossible for applicants to meet (the old, absurdly high burden of proof) with another, namely the requirement to prove that a given nefarious purpose was predominant. Proving the motivation of the authorities in either case will likely remain extremely difficult.

Arguably, the Court in Merabishvili failed to fully appreciate Article 18 as a tool for addressing the suppression of dissent and the silencing of political opposition. In this regard, it is important to recall that Article 18 was intended as a warning bell for when States begin to (back-)slide into undemocratic tendencies. This does not mean that all criminal proceedings against politically prominent persons violate Article 18, or that the Court must take a political stand in such cases. However, the Court is performing its role as the “conscience of Europe”[5] poorly if it tolerates abusive limitations of rights. The Court must be careful to maintain its ability to sound the alarm when basic democratic principles are disrespected and opposition leaders are silenced, not just because this violates individual rights, but because such actions can have negative effects on the democratic functioning of a State.

In this regard, it is important to look at an element of Ilgar Mammadov that was not at stake in Merabishvili. That is the question of whether Article 18 can be invoked together with Article 6 ECHR. In this regard, it must emphatically be recalled that, even though its text does not provide for limitations in the same way as Articles 8-11 ECHR do, the right to a fair trial is not absolute.[6] Despite this, the Court has a long history of failing to consider complaints under these combined provisions, and has in the past occasionally failed to even communicate such complaints, to the dismay of minority judges.[7] Indeed, the argument that Article 6 does not permit limitations, and therefore cannot be invoked together with Article 18, is quite frankly wrong. With complaints under Article 18 growing in number, and cases such as Navalnyy v. Russia pending before the Grand Chamber, it is high time for the Court to fix this. It matters whether Article 18 is examined and found to be violated: not only does a violation affect the amount of compensation awarded, but it also allows the Court to address undemocratic tendencies before they develop into a bigger problem.[8]


[1] Some notable examples being the Joint Partly Dissenting Opinion of judges Keller and Dedov and the Partly Dissenting Opinion of Judge Serghides in Navalnyye v. Russia, no. 101/15, Judgment of 17 October 2017, not final at the time of writing, §§ 87-89; the Joint Partly Dissenting Opinion of judges Nicolaou, Keller and Dedov in Navalnyy and Ofitserov v. Russia, nos. 46632/13 and 28671/14, Judgment of 23 February 2016, the Joint Concurring Opinion of judges Sajó, Tsotsoria and Pinto de Albuquerque and the Concurring Opinion of judge Kūris in Tchankotadze v. Georgia, no. 15256/05, Judgment of 21 June 2016; as well as the Joint Concurring Opinion of judges Jungwiert, Nussberger and Potocki in Tymoshenko v. Ukraine, no. 49872/11, Judgment of 30 April 2013.

[2] Helen Keller and Corina Heri, ‘Selective Criminal Proceedings and Article 18 ECHR: The European Court of Human Rights’ Untapped Potential to Protect Democracy’, 36(1-6) Human Rights Law Journal (2016), 1-10, p. 3.

[3] Helen Keller and Corina Heri, cited above, at 10.

[4] Thanks go to Wiebe Hommes for bringing this expression to my attention. It seems to exist in a number of languages, including German, Dutch, and archaic English.

[5] Collected Edition of the ‘Travaux Préparatoires’ of the European Convention on Human Rights (Martinus Nijhoff, The Hague 1975-1985), vol II, p. 174.

[6] Compare, inter alia, Golder v. the United Kingdom, no. 4451/70, Judgment of 21 February 1975, § 38.

[7] Tchankotadze v. Georgia, no. 15256/05, Judgment of 21 June 2016, especially the Joint Concurring Opinion of Judges Sajó, Tsotsoria and Pinto the Albuquerque, §§ 4-6.

[8] Helen Keller and Corina Heri, cited above.

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