The new doctrine on misuse of power under Article 18 ECHR: Is it about the system of contre-pouvoirs within the State after all?

2.1. The inclusion of Article 18 in the European Convention on Human Rights

Unlike the texts of its day ¹⁸ and its source of inspiration – the Universal Declaration of Human Rights – the ECHR contains a provision, that of Article 18, which pertains to the limitations on use of restrictions on rights. Only later would equivalent provisions be included in international instruments for the protection of human rights, ¹⁹ notably in the American Convention on Human Rights ²⁰ and in the European Social Charter, ²¹ but also in the Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights. ²²

The inclusion of Article 18 into the Convention is directly linked to the French influence of the time, as evidenced by the Convention’s travaux préparatoires. ²³ The drafting of Article 18 was a compromise between the French and British approaches on the restrictions of rights. ²⁴ Unlike the French approach, the British one was hostile to the inclusion of a general restriction clause. ²⁵ While it was finally the British approach that prevailed, this did not mean that the French approach was completely rejected. ²⁶ On the contrary, the partisans of the French approach secured an important victory since it was their draft provision on the power of interference – Article 18 today – that found its way to the adopted Convention text. ²⁷

But much more than that, the French influence can be felt in the very content of the clause. As also acknowledged by the Grand Chamber itself, ²⁸ Article 18 ²⁹ was described by the Conference of Senior Officials on Human Rights as an application of the détournement de pouvoir theory. ³⁰ This explains why Article 18 bears its current name of ‘clause anti-détournement’. ³¹ In French Administrative Law, a détournement de pouvoir takes place when an administrative authority uses its powers to serve a different purpose than the one for which those powers were conferred to it. ³² While the State authorities abide by the letter of the law, they nonetheless step outside the ‘spirit of [their] functions’. ³³

The détournement de pouvoir doctrine has a purely jurisprudential origin without a precise textual basis ³⁴ and is not per se known to the system of common law. As pointed out in scholarly writings:

although the English courts will not typically quash an ‘acte administratif’ on the grounds of bad faith alone, it is true that they often arrive, by an elaborate process of statutory construction, at a result similar to that which would have been reached in the droit administratif by a simpler route. ³⁵

The parallel drawn up with the détournement de pouvoir, that is the misuse of power à la française, ³⁸ offers some preliminary guidance as per the content of Article 18 ECHR. Nonetheless, it should be acknowledged that the historic interpretation based on the preparatory works is of limited importance to the Court, which indeed uses it but will more often rely on other methods of interpretation. The misuse of power is associated with the control of the internal legality of an administrative act and more precisely of its purpose. Two hypotheses of misuse of power are mainly envisaged: either the administrative act is foreign to any public interest (primary détournement de pouvoir) or it is taken in a public interest, but not in the one for which the powers necessary to take the act have been conferred to its author (secondary détournement de pouvoir). ³⁹ It is the first hypothesis, considered as the more serious case of misuse of power, ⁴⁰ which recalls the principle, that was to be the precursor to Article 18. This principle was formulated by the Legal Committee at the Consultative Assembly and provided for the ‘prohibition of any restriction on a guaranteed freedom for motives based, not on the common good or general interest, but on reasons of State’. ⁴¹ The principle formulated by the founding fathers can potentially correspond to all four categories of cases where primary détournement de pouvoir takes place:

the actor has acted on his own personal interests;

The drafters of the Convention wanted to exclude the possibility that the State ‘intervenes to suppress, to restrain and to limit these freedoms for (…) reasons of state’, ⁴³ especially if it was ‘to protect itself according to the political tendency which it represents, against an opposition which it considers dangerous’. ⁴⁴ The conscious pursuit of such political motives is particularly detrimental to the democratic principle, ⁴⁵ the fundamental ideal of the conventional system.

As in French Administrative Law, the misuse of power in the Strasbourg system implies an additional reproach of a moral nature. Indeed, the review of internal legality under the misuse of power became a ‘morality check’, as the renowned French legal theorist Dean Hauriou ⁴⁶ pointed out. The censorship for misuse of power ‘took the form of a moral condemnation of the most serious excesses of public authority’ ⁴⁷ because the error of law is accomplished in bad faith. Contrary to ‘perfectly excusable’ ⁴⁸ miscarriages of justice, the misuse of power is related to the abuse of law involving a reproach for a conscious breach of duty, ⁴⁹ for ‘particularly scandalous’ ⁵⁰ attitudes of the administration.

Despite the aforementioned, the application of the concept of détournement de pouvoir is a rather demanding task, considering especially the difficulty to determine the legal purpose (but légal) of the administrative act and prove the purpose pursued by its actor, which is a psychological element hard to identify. ⁵¹ After all, the improper purpose must be ‘susceptible of exerting some influence on the very substance of the administrate order’. ⁵² The censorship for détournement de pouvoir qualifies, thus, as an ultimum refugium for the French administrative judge which comes into the fray only when there is no other ground for sanction. ⁵³ Just like Dean Vedel pondered: ‘why to engage with a superfluous détournement de pouvoir?’. ⁵⁴ This judicial practice seems to bear strong similarities to the one adopted by the Strasbourg organs, and it is to this practice that we shall now turn our attention.

2.2. The transition towards a new era for Article 18

The idea that the examination of a claim under Article 18 ECHR is superfluous, and therefore the Article itself is without any real scope of application or reason of existence, has been raised in scholarly debate. This view was based on the fact that issues of misuse of power were absorbed by the examination of the interferences with substantive rights. ⁵⁵ According to this view, Article 18 plays a supplementary role, inspiring and informing the interpretation of the other provisions of the Convention, but not being the primary provision under consideration. Its spirit was allegedly diffused in the general mechanisms of control and interpretation of the Convention. ⁵⁶

Until recently commonly received as a ‘dormant’ clause, Article 18 has indeed been scarcely applied by the Convention organs. ⁵⁷ In 1974 the European Commission on Human Rights, without however finding a violation of Article 18, established two crucial points for the interpretation of the clause:

although Article 18 cannot apply alone, it can nevertheless be breached even if there is no violation of the Article in conjunction with which it is applied; and

Ever since and for fifty years, nothing in the case-law of the Court would suggest that Article 18 ECHR had any particular practical significance whatsoever. It would be only in 2004, in Gusinskiy v Russia, that the Court finds a violation of Article 18 in conjunction with Article 5 of the Convention for the first time ever, considering that the fact that the applicant, a media tycoon, had been offered a commercial agreement whilst in prison in exchange for the dropping of charges against him, suggested that his prosecution pursued the ulterior purpose of intimidating him. ⁵⁹

Gusinskiy offered optimism about the merit of Article 18 ⁶⁰ which was, up until that moment, nothing more than a ‘neutralised’ clause. ⁶¹ However, the new era ushered through the 2004 Gusinskiy judgment did not dramatically alter the status of Article 18 in the case-law of the Court. Even post-Gusinskiy, the solutions adopted by the Court when dealing with Article 18 cases would still be marked by a wide variability. ⁶² The typology of the Strasbourg case law under Article 18, as pertinently discerned by Judge Kūris in his concurring opinion in Tchankotadze v Georgia, reveals this very point. In Tchankotadze, issued in 2016, the Court found the applicant’s claim under Article 18 of the Convention in conjunction with Article 5 manifestly ill-founded and rejected it in accordance with Article 35(3)(a) and (4) of the Convention. ⁶³ Going through the case law of the Court up until that point, Judge Kūris identified the following patterns with respect to Article 18 ECHR. When faced with a claim under Article 18, the Court would invariably do one of the following:

conclude that there had been no violation of Article 18 because no violation of the substantive provision had been established;

It was, thus, still unclear what the true meaning of Article 18 was. Since Gusinskiy, thirteen more years passed before the Grand Chamber ⁶⁵ of the Court clarified its case-law on misuse of power ⁶⁶ in its Merabishvili judgment of 17 December 2017.

The factual background of the case was connected to the recent political history of Georgia. ⁶⁷ The applicant, Ivane Merabishvili, was one of the protagonists of the Georgian ‘Rose Revolution’ that took place in 2003. Member of the United National Movement (‘UNM’), Ivane Merabishvili was appointed Minister of the Interior in 2005 and Prime Minister in 2012. In October 2012, following the electoral defeat of the UNM, criminal proceedings were brought against the applicant for various offenses, including abuse of power. Ivane Merabishvili had recently been elected Secretary-General of the UNM, which became the main opposition party in the country. Relying on Article 5(1), (3) and (4) of the Convention, the applicant complained about the irregularities of his arrest and detention. ⁶⁸ Furthermore, he alleged a violation of Article 18 combined with Article 5(1), claiming that the purpose of the criminal proceedings against him and of his pre-trial detention was to exclude him from the political scene and to obtain information from him on issues that had nothing to do with the criminal proceedings against him. ⁶⁹ The applicant particularly referred to a night in December 2013, during which he was secretly removed from his cell to be questioned about the death of a former prime minister and the bank accounts of Mikheil Saakashvili, leader of the UNM. ⁷⁰ In 2014, the applicant was found guilty of most of the charges against him and was serving a prison sentence when the Grand Chamber judgment was published on 28 November 2017. ⁷¹

The Grand Chamber in Strasbourg concluded, unanimously, that there had been no violation of Article 5(1) with regard to the applicant’s arrest and pre-trial detention ⁷² and no violation of Article 5(3) as to the initial phase of his pre-trial detention. ⁷³ However, the Court held unanimously, as to the violation of Article 5(3), that the continued detention was no longer based on sufficient grounds ⁷⁴ and, by nine votes to eight, found in favour of a violation of Article 18 in conjunction with Article 5(1). ⁷⁵ It is on this latter point that the particular importance of the Merabishvili judgment lies. According to the Grand Chamber, the restriction of the applicant’s right to liberty primarily served a purpose other than the purpose stated, and one not provided for in the Convention. ⁷⁶ While initially the purpose of his detention had been the investigation of offences based on a reasonable suspicion, it later on transformed into obtaining information about a former Prime Minister’s death and about Mikheil Saakashvili’s bank accounts. ⁷⁷

In its judgment, the Grand Chamber clarified the principles applicable to cases in which Article 18 claims are made. The clarifications provided by the Court are broadly concerned with three main points. In the first place, the Grand Chamber delimited the relationship of Article 18 with the other clauses of the Convention, confirming that the former does not exist independently. ⁷⁸ Indeed, Article 18 can only be applied in conjunction with an Article of the Convention or the Protocols thereto setting out a right or freedom that may be subject to restrictions permitted by the Convention. ⁷⁹ Despite this, Article 18 has an autonomous scope insofar as it can be violated without there being a violation of the article with which it is combined. ⁸⁰ Second, the Grand Chamber introduced the criterion of ‘predominant purpose’. According to the Court, a situation could arise where one would be faced with a plurality of purposes, meaning the restriction would serve numerous purposes at the same time. Whereas this could be compatible with the substantive Convention provision which authorised the restriction, because it pursued an aim permissible under that provision, it could nonetheless still infringe Article 18 since the restriction was chiefly meant for another purpose that was not prescribed by the Convention. In other words, there would be a violation of Article 18 if out of all the purposes, the one not prescribed by the Convention was the dominant one. ⁸¹ Third, the Court clarified its jurisprudence on the question of proof regarding Article 18, holding that it must follow its usual approach, without applying special rules. ⁸²

While the in-depth analysis of the Court’s judgment in Merabishvili cannot be exhausted in the present article, ⁸³ it is noteworthy that the introduction of the ‘predominant purpose’ test has triggered a considerable debate. The eight dissenting judges − who agreed with the principles set in the judgment but disagreed with the majority as to their application to the facts of the case − seemed to acknowledge and accept the fact that the ‘very high threshold (…) manifested in the predominant-purpose test’ implies that Article 18 can only apply in ‘the most serious of cases’. ⁸⁴ Sounds of critique were, however, expressed in the concurring opinions. In his concurring opinion, Judge Serghides critically reflected on the ambiguity of the new test ⁸⁵ and in their joint concurring opinion, Judges Yudkivska, Tsotsoria and Vehabović suggested that when there is evident misuse of State machinery for improper political ends, ‘the Court should treat it by default as the predominant purpose’. ⁸⁶ The ‘predominant purpose’ test introduced in Merabishvili is not an invention of the Court of Strasbourg. Even though, it is not explicitly acknowledged by the Court, it seems to have been inherited from the French doctrine of détournement de pouvoir and the concerns pertaining to its application are also relevant to the French Administrative Law. ⁸⁷ It is left to be seen whether future applications of the test by the Court will indeed raise concern in this regard. ⁸⁸

Ever since the Merabishvili judgment, the Court has delivered a string of judgments that contributed to the further development of the interpretation of Article 18. From 2004 until April 2019, the Court has found a violation of Article 18 in thirteen cases, all of them in conjunction with Article 5 of the Convention (right to liberty and security) ⁸⁹ and, in two of them, also in conjunction with Article 8 (right to respect for private and family life) ⁹⁰ and Article 11 (freedom of assembly and association). ⁹¹ In all cases, prominent figures in the political and/or economic arena of the country were prosecuted and detained for purposes other than those officially stated by the authorities and prescribed by the Convention. In the context of what is perceived as ‘political justice’, the proceedings against the applicants served ulterior purposes, namely the implementation of the government’s agenda or the punishment of those who were opposing to it.

So far, the violations of Article 18 seem to have an Eastern European character. Russia, Moldova, Ukraine, Azerbaijan, Georgia and Turkey are the States against which violations of Article 18 were found. With respect to some of these States, a violation of Article 18 was found in more than one case; Russia, ⁹² Ukraine ⁹³ and certainly Azerbaijan ⁹⁴ seem to qualify as ‘repeat offenders’. This observation might not come as a surprise given the reoccurent challenges pertaining to the rule of law in these countries during the past years. In any case, though, we should always be reminded that no State can enjoy immunity from the threats of what Pierre-Henri Teitgen describes as the ‘eternal reason of State’. ⁹⁵ ‘Behind the State, whatever its form, were it even democratic, there ever lurks as permanent temptation, this reason of State’. ⁹⁶

Notwithstanding the evolution of the case law on Article 18, as described previously, the specific role of the ‘clause anti-détournement’ in the Strasbourg system is yet to be determined. Article 18 in conjunction with Articles 17 and 35(3)(a) ECHR form the basis of the Strasbourg theory of abuse of rights. This theory revolves around the regulation of the ‘proper use by European human rights actors of rights and freedoms’ ⁹⁷ and puts forward the requirement of good faith. ⁹⁸

Admittedly, the requirement of good faith permeates the entirety of the ECHR system, especially considering its intrinsic link with the fight against arbitrariness. As the Grand Chamber pointed out in Saadi, ‘[o]ne general principle established in the case-law is that detention will be “arbitrary” where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities’. ⁹⁹ If bad faith, deception, or hidden agenda(s) ¹⁰⁰ relate to the idea of arbitrariness, it would be legitimate to ask what the added value is of the application of the ‘clause anti-détournement’ in this regard. ¹⁰¹ It is this question that the following section will address.

3.1. Identifying the contre-pouvoirs in Article 18 cases

In light of the case law on Article 18, the involvement of contre-pouvoirs in cases of abuse of power revolves around two axes. First, a misuse of power occurs when the political, social and economic contre-pouvoirs of the State are under threat. Second, a misuse of power occurs when the institutional contre-pouvoirs fail to fulfil their functions effectively.

3.2. Identifying the evolution of a systemic ECtHR approach

Just like Aristotle described it, μία γὰρ χελιδὼν ἔαρ οὐ ποιεῖ, οὐδὲ μία ἡμέρα [one swallow does not make spring, nor does [it make] one fine day]’. ¹³⁵ One case of prosecution of an individual active in the sphere of a contre-pouvoir for general political reasons does not per se indicate that the contre-pouvoirs within the State are, as such, targeted. The assertion that a violation of Article 18 of the Convention reflects the orchestrated dysfunction of the contre-pouvoirs within a State, entails a systemic approach. Such a systemic approach pertains to the implications of an Article 18 violation regarding the whole democratic system.

This systemic approach was progressively developed by the Court. ¹³⁶ Up until recently, the violation of Article 18 was based on the fact that the State prosecuted the applicants on the basis of the pursuit of specific ulterior purposes. These typically included their critical attitude towards the State authorities ¹³⁷ and mostly against the government itself, ¹³⁸ for the diffusion of information that the government wished to keep secret, ¹³⁹ for controlling their affairs in the benefit of the government ¹⁴⁰ or for collecting information of a political nature. ¹⁴¹

It is undisputable that all the aforementioned ulterior purposes implied a persecution for political reasons closely related to the status of these individuals. However, the Court did not explicitly accept that such a situation systematically targeted the democratic functioning of the society in itself, via the neutralisation of certain entities of the political scene.

Even in the Merabishvili case, a revolutionary case for the interpretation of Article 18, the Grand Chamber did not base the finding of a violation of Article 18 on the allegation that the applicant’s arrest and pre-trial detention were meant to remove him from the political scene. ¹⁴² If, of course, such a conclusion is dependent on the assessment of the factual circumstances of the case, it is noteworthy that the judgments which followed, revealed what we believe to be the very essence of a violation of Article 18.

On 20 September 2018, the Court published its judgment on the case Aliyev v Azerbaijan, finding a violation of Article 18. With the Aliyev case included, there were five judgments in which the Court found a prohibited, under the Convention, misuse of power by Azerbaijan. Thus, in the framework of the examination of Article 46 of the Convention, the Strasbourg Court explicitly referred to the fact that these judgments ‘reflect a troubling pattern of arbitrary arrest and detention of government critics, civil society activists and human-rights defenders through retaliatory prosecutions and misuse of criminal law in defiance of the rule of law’. ¹⁴³

The explicit identification of a ‘troubling pattern’ rather than an ‘isolated incident’ is undoubtedly of great importance. The Court acknowledged that the applicant was not the only government critic detained and searched for ulterior purposes. However, a systemic approach is not solely related to the quantitative characteristics of a situation but also to the qualitative ones. Even as an isolated incident, the detention of the applicant, a human rights defender, and search of his home and office for the purpose of silencing and punishing him and impeding his work, would have specific implications on the functioning of the contre-pouvoirs within a State. As the Court itself stressed: it ‘cannot lose sight of the chilling effect of those measures on the civil society at large, whose members often act collectively within NGOs and who, for fear of prosecution, may be discouraged from continuing their work of promoting and defending human rights’. ¹⁴⁴

The ‘chilling effect’ rationale as developed in the case-law of the ECtHR is in itself under-researched by scholars. ¹⁴⁵ In a similar vein, its eventual value in the context of Article 18 cases also remained, until a certain point, underexplored by the Court. ¹⁴⁶ In general, the Court has put particular emphasis on the chilling effect of measures adopted against a particular applicant on the exercise of criticism to government by the members of the judiciary ¹⁴⁷ or the legislative. ¹⁴⁸ It would thus have been expected that the Court would have done the same in the context of Article 18 cases. It is not an exaggeration to suggest that this ‘chilling effect’ on civil society, on the contre-pouvoirs and on the state of democracy ¹⁴⁹ in general forms part of the ulterior purpose pursued by the State when misusing its power. ¹⁵⁰

The Court progressively acknowledged this reality. Even though it does not expressis verbis refer to the ‘chilling effect rationale’, ¹⁵¹ the Grand Chamber, for the first time in the Navalnyy case, unequivocally endorsed the systemic dimension of Article 18 violations. The Court observed that:

At the core of the applicant’s Article 18 complaint is his alleged persecution, not as a private individual, but as an opposition politician committed to playing an important public function through democratic discourse. As such, the restriction in question would have affected not merely the applicant alone, or his fellow opposition activists and supporters, but the very essence of democracy as a means of organising society, in which individual freedom may only be limited in the general interest, that is, in the name of a ‘higher freedom’ referred to in the travaux préparatoires. ¹⁵²

It should be acknowledged though that, to a certain extent, it was Merabishvili which set the basis for such a systemic approach. In this 2017 judgment the Grand Chamber clarified, among other things, its stance on the questions of proof, making also clear that the Court does not restrict itself to direct proof in relation to complaints under Article 18 of the Convention ¹⁵⁵ but also endorses the possibility of taking circumstantial evidence into consideration. ¹⁵⁶ Thus, the Court can and does also take into account the contextual background of a case, reports or statements by international observers, non-governmental organisations or the media, or the decisions of other national or international courts, particularly with a view to shed light on the facts, or to corroborate findings made by the Court. ¹⁵⁷ This is especially important for Article 18 cases, where the suffering of the democratic values is the result of systemic deficiencies, and the individual cases of the applicants are just the proverbial tip of the iceberg.

The moral considerations that are inherent to the ‘misuse of powers’ à la strasbourgeoise are closely connected to its structural dimension. As it was already demonstrated, a violation of Article 18 implies that the function of the whole machinery of the State is wanting.

The ongoing evolution of the case law under Article 18 reflects the shift of the Court towards systemic justice, where the Court evaluates the compatibility of a general context with fundamental pirnciples. This trend is not new to the Court. The evolution of the conventional exigencies has gradually put the separation of powers within the State into the fray of the European case law. Even if it is true that the Court does not apply any specific theory of separation of powers, the protection of human rights as enshrined in the Convention cannot be guaranteed unless the activities of the executive are delineated by the legislative and the judiciary. ¹⁵⁸ The ECtHR thus scrutinises the institutional designs within the State Parties to the ECHR, notwithstanding the fact that it does not qualify as a constitutional court. Even though the mandate of the ECtHR is to look at the working of the system from the perspective of its effects on individuals, there are still spill-over effects. ¹⁵⁹ A change made to accommodate a requirement related to an individual can have effects on separation of powers within a member State of the Council of Europe. ¹⁶⁰

This systemic justice trend is dominant in the case law relating to Article 18. The Court has explicitly acknowledged in Selahattin Demirtaş v Turkey (No. 2) that ‘it is not only the applicant’s rights and freedoms as an individual that could be said to be under threat but the whole democratic system itself’. ¹⁶¹ Article 18 could therefore function as an early warning system for European States that are at risk of becoming an illiberal democracy or even of reverting to totalitarianism and the destruction of the rule of law. ¹⁶²

In this context, it comes as no surprise that in the Navalnyy case, one year after Merabishvili, the Grand Chamber put emphasis on the ‘the structural inadequacy of the regulatory framework, which failed to provide effective legal safeguards against abuse’ ¹⁶³ and clarified under Article 46 of the Convention that ‘this situation in principle calls for the adoption of general measures by the respondent State’. ¹⁶⁴ Even though the application of Article 46 remains scarce in the case law, ¹⁶⁵ the systemic character of Article 18 cases justifies the recommendation of specific general measures ¹⁶⁶ by the Court itself.