PARTLY CONCURRING OPINION OF

JUDGE YÃœKSEL

1. I voted with the majority in favour of finding a violation of Articles 5 § 1 and 10 of the Convention in the present case. While I agree with the majority’s position on the outcome, I respectfully dissociate myself from certain parts of the reasoning and approach adopted in the judgment, for the reasons set out below.

2. As regards the applicants’ complaints under Article 5 § 1 of the Convention the main question, it seems to me, is whether the acts in issue could be attributed to the applicants, who are journalists of the national daily newspaper or directors of the related foundation. Accordingly, in the reasoning leading to the finding of a violation of that provision, it would have been sufficient, in my view, for the Court to confine its examination to the question of the attributability of the acts to the applicants, assessed in the light of the criteria relating to the reasonableness of the suspicion for the purposes of Article 5 § 1 (c) of the Convention. Thus, I am not sure about the approach consisting in examining a number of the articles, messages and interview in issue in the light of the criteria laid down in Article 10 of the Convention. In particular, I have serious reservations about the necessity of the reasoning set forth in paragraph 173 of the judgment. In addition, I respectfully disagree with the content and the conclusion of that paragraph. At this stage, I would also prefer to confine myself to pointing out that the relevant materials examined in that paragraph are the subject of another application pending before the Court.

3. As regards Article 10 of the Convention, the analysis of whether an interference was “prescribed by law” within the meaning of Article 10 requires, in my view, separate examination and should not result in the finding of a kind of automatic violation of that Article merely on the basis of the violation of Article 5, in cases where the Court finds a breach of Article 5 § 1. In this context, and referring to my concurring opinion in the case of Ragıp Zarakolu v. Turkey (no. 15064/12, 15 September 2020), I believe that the interference observed in the present case was prescribed by law and satisfied the requirement of lawfulness. The interference in the present case fell to be examined with reference to the criterion of necessity, notwithstanding the finding of a violation of Article 5 (see, in this connection, Mehmet Hasan Altan v. Turkey , no. 13237/17, §§ 202 ‑ 14, 20 March 2018; Steel and Others v. the United Kingdom , 23 September 1998, § 110, Reports of Judgments and Decisions 1998 ‑ VII; and Kandzhov v. Bulgaria , no. 68294/01, § 73, 6 November 2008). In this regard, I agree with the finding of a violation of Article 10 on the grounds that the applicants’ detention could not be regarded as an interference that was proportionate and “necessary in a democratic society” within the meaning of Article 10 of the Convention.

PARTLY DISSENTING OPINION OF

JUDGE KŪRIS

I

1. I voted against point 7 of the operative part of the judgment and, consequently, against point 9.

2. There has clearly been a violation of Article 18 of the Convention. The applicants’ placement in police custody, their continued pre-trial detention and the criminal charges brought against them were of a political nature, only clumsily camouflaged in legal robes, and their conviction (even if quashed) was likewise tainted with political interference. The tenets of the rule of law were disregarded. All this resulted from the authorities’ policy. For how else could one assess such measures taken against the journalists, editors or managers of a newspaper critical of the authorities, primarily on the basis that, in the authorities’ reading, the newspaper’s editorial stance had changed (if change it was) and it had published something which, in the authorities’ view, was “glaringly at odds with the world view of its readers” (see paragraph 42 of the judgment)? Most people would call this political persecution of the media. The authorities maintained that the facts were indicative of the applicants’ involvement (even if only indirect) in the abortive 2016 military coup.

3. The courts are masters of the examination of the cases that come before them. They can, if they so decide, examine each fact of the case separately (which in itself is a sound method) and find that, although all or some of those facts disclose that the authorities acted in violation of the applicable law, that in itself is not sufficient for the finding that behind the violations there was an improper ulterior purpose, or “hidden agenda”. These euphemisms, as a rule, refer to political motives. Even when violations of more than one legal provision are found with regard not to one but to a larger number of litigants and, moreover, there is a correlation between them, the courts sometimes conclude that this is nevertheless not indicative of the alleged improper ulterior purpose, notwithstanding that an objective observer (or virtually everyone except the court itself) would be persuaded by the abundant proof to the contrary and would therefore regard the court’s finding as erroneous. When the courts’ findings so markedly diverge from common knowledge, which more often than not means that they are divorced from reality, and especially when the court in question is the highest court, whose word on the matter is final, very little can be done to alleviate the feeling of the aggrieved party and that of society at large that justice has not been served . That feeling is even more persistent where the outcome exonerating the authorities is repeated from case to case, that is to say, the alleged ulterior purpose is not discerned by that court in a series of cases, notwithstanding the fact that the juxtaposition of their facts would allow for the conclusion that the violations of the various victims’ rights comprise a system, the constituent parts of which are united by precisely that purpose, so obvious to many.

4. Having written that “very little can be done”, I must immediately qualify this statement. Something could be done. That “something” is in the hands of the relevant court. It consists of the most thorough and explicit analysis and balancing of all the facts and arguments both for and against the finding of a “hidden agenda” (thoroughness and explicitness being properties of equal importance), such as to demonstrate that each and every argument of the parties and the third-party interveners alleging that there were indeed ulterior motives behind the violation(s), as well as the common knowledge to that effect, have been assessed from all relevant angles and that none of them has been suppressed. Only in this way might a critical outsider be inclined to trust that, although the court, in his or her opinion, erred (for who does not?), that fallacy was sincere and did not result from the court’s indulgence towards the relevant political regime or, worse, from its own “hidden agenda” – even if there was none. If that analysis and balancing require a few extra paragraphs or pages in the judgment, so be it. That would not be too high a price for demonstrating that justice was sought, even though the result turned out to be unsatisfactory to many.

5. In the present case the Chamber found violations of Article 5 § 1 and Article 10 with regard to several of the applicants. The correlation between the violations is indubitable. However, no violation of Article 18 was established. For the Chamber, it was not proven that the actions tainted by the said violations, taken either separately or in combination, resulted from the wilful – that is to say, political – persecution by the authorities of their opponents. That has something to do with the way in which the allegations were examined.

II

6. The methodology underlying the finding of no violation of Article 18 in the present case was deeply entrenched for many years in the Court’s practice. It was rooted in the general assumption that the public authorities in the member States act in good faith – an assumption on which the whole structure of the Convention rests (see Khodorkovskiy v. Russia , no. 5829/04, § 255, 31 May 2011). A violation of Article 18 would mean that the presumed good faith gave way to a “hidden agenda”, and law to force. For decades the Court required that, for a violation of Article 18 to be found, it had to be furnished with “incontrovertible and direct proof” (see Khodorkovskiy , cited above, § 260, and OAO Neftyanaya Kompaniya Yukos v. Russia , no. 14902/04, § 663, 20 September 2011). That proof could not be adduced by anyone other than the applicant: if an applicant alleged that his or her rights and freedoms had been limited for an improper reason, he or she had to “ convincingly show ” (a mere suspicion would not do) that the real aim of the authorities was not the same as that proclaimed. In brackets it was added: “or as can be reasonably inferred from the context” (see Khodorkovskiy , cited above, § 255, emphasis added; see also § 256), thus conceding that there remained a possibility that some contextual evidence corroborating the applicants’ allegations of an improper ulterior purpose could be “reasonably” accepted. But that possibility was as slim as could be and purely hypothetical, as demonstrated by the Court’s practice of avoiding any contextual analysis in Article 18 cases. To wit, such an analysis was not undertaken either in Khodorkovskiy or in the subsequent cases, until a breakthrough was achieved in two cases against Azerbaijan (see paragraphs 15 ‑ 17 below). The standard of proof effectively applied by the Court in Article 18 cases was that the contextual evidence was in fact not to be taken into consideration, no matter how strongly it corroborated the allegations of a “hidden agenda”. It became known as the “very exacting standard of proof” (see Tchankotadze v. Georgia , no. 15256/05, § 113, 21 June 2016, with further references).

7. In some cases the applicants provided the Court with copious contextual evidence in support of their claims that there was indeed an ulterior purpose behind the violations of their rights, and maintained that that evidence rendered their claims arguable, such that the burden of proof had to shift onto the Government. The Court was not moved by these considerations. It steadily steered a course whereby, even where the “appearances” spoke in favour of the applicants’ claims of improper motives, the onus still rested with them (see, for example, Khodorkovskiy and Lebedev v. Russia , nos. 11082/06 and 13772/05, §§ 899 ‑ 903, 25 July 2013). In some cases the Court even conceded the link between the applicants’ predicaments and politics, for instance that the violations committed by the authorities against the victims were beneficial to some political players, but those “appearances”, no matter how plentiful or consistent (in Khodorkovskiy they were present in abundance in the “resolutions of political institutions, NGOs [non-governmental organisations], statements of various public figures, etc.” and “the findings of several European courts”; §§ 259 and 260), were not sufficient for the hand of politics to be discerned behind those violations, as “the political process and adjudicative process [were] fundamentally different” (ibid., § 258 ‑ 59). For convenience, the latter adage can be labelled the “ Khodorkovskiy formula”. Whatever the “appearances”, the Court was resolute that it (“the judge”) had to base its decision on “evidence in the legal sense” (ibid.), which “appearances” were not. The proof adduced by the applicants was accepted by the Court as “evidence in the legal sense” only if it constituted “incontrovertible and direct proof”. The Court’s “very exacting standard of proof” thus amounted to the requirement that the applicants present it with palpable, physical, preferably documented evidence of a “hidden agenda”. That was possible only when (i) the authorities had themselves recognised or otherwise revealed that they knew (or should have known) that their actions were guided by a purpose which was not among those permitted under the Convention; and (ii) the proof of that recognition had somehow fallen into the hands of the applicants. Normally, perpetrators try not to leave traces, let alone make the footprints of their unlawful motives accessible to their victims. The few exceptions where the States did not succeed in hiding the impropriety and unlawfulness of their agenda were Gusinskiy v. Russia (no. 70276/01, ECHR 2004 ‑ IV); Cebotari v. Moldova (no. 35615/06, 13 November 2007); Lutsenko v. Ukraine (no. 6492/11, 3 July 2012); and Tymoshenko v. Ukraine (no. 49872/11, 30 April 2013). And even if there were traces of ulterior motives behind the persecution of the victims, they were neutralised – in the sense that a violation of Article 18 was not found – by a “healthy core” present in the overall set of purposes of the applicants’ persecution, which allowed for, say, the raising of serious criminal accusations against them (see, for example, Khodorkovskiy and Lebedev , cited above, § 908).

8. As noted by several judges in their separate opinions (as well as by some academics), the specification that, in order to be accepted as “evidence in the legal sense”, the proof adduced by the applicants themselves and no one else had to be “incontrovertible and direct”, posed an insurmountable difficulty to most applicants (some of whom were detained at the time when their applications were lodged with the Court or even when the applications were examined). No wonder that for a long time they, one after another (with a few exceptions that could be counted on the fingers of one hand), had their Article 18 complaints rejected by the Court, regardless of what the whole world knew about the political causes of their persecution. The Court’s overly restrictive approach to “evidence in the legal sense” and the findings of no violation of Article 18 based on it could not fail to contribute to a heightened feeling of impunity within the regimes concerned and a growing apprehension that the Convention was in retreat when confronted with political “bigshots” who persecuted their opponents with all the force of the State machinery. That, in its turn, could of course not leave the Court’s image unimpacted.

9. In addition, the Court developed the practice of bluntly refusing even to examine Article 18 complaints, with the only simulacrum of reasoning being that, in its opinion, their examination was “not necessary”, whatever that was supposed to mean (see, for instance, Navalnyy and Yashin v. Russia , no. 76204/11, 4 December 2014, and Frumkin v. Russia , no. 74568/12, 5 January 2016). At times this evasiveness took on unaccountable forms, as in Mudayevy v. Russia (no. 33105/05, 8 April 2010), where the Court, having found violations of Articles 2, 3, 5 and 13 and having stated that it had “already found ... that the applicants’ relatives were deprived of their liberty without any of the safeguards contained in Article 5, and not ‘for the purpose of bringing [a person] before the competent legal authority on reasonable suspicion of having committed an offence’ as stipulated in Article 5 § 1 (c)”, decided that “since that issue [had] already been addressed by the Court, there [was] no need to examine these facts again under Article 18 in conjunction with Article 5” (§ 128). In Kasparov and Others v. Russia (no. 2) (no. 51988/07, 13 December 2016), where the Court stated that “the applicants’ arrest and administrative detention had the effect of preventing and discouraging them and others from participating in protest rallies and actively engaging in opposition politics ” (in violation of Articles 5 § 1, 6 § 1 and 11), it nonetheless held that “[i]n view of this” ( this ?!), the examination of the alleged violation of Article 18 was “not necessary” (§ 55; emphasis added). Similarly, in Nemtsov v. Russia (no. 1774/11, 31 July 2014) the Court found it established that “the applicant had been arrested, detained and convicted of an administrative offence arbitrarily and unlawfully ” and that “this had had an effect of preventing or discouraging him and others from participating in protest rallies and engaging actively in opposition politics ” (in violation of Articles 3, 5 § 1, 6 § 1, 11 and 13), yet it held that Mr Nemtsov’s Article 18 complaint “ raised no separate issue and it [was] not necessary to examine whether ... there [had] been a violation of that provision” (§§ 129 and 130; emphasis added). A similar approach was taken in the inter-State case of Georgia v. Russia (I) ([GC] no. 13255/07, ECHR 2014 (extracts)), in which the Court found violations of Articles 3, 5 § 1, 5 § 4, 13, 38, and Article 4 of Protocol No. 4. The Court held that “in the autumn of 2006 a coordinated policy of arresting, detaining and expelling Georgian nationals was put in place in the Russian Federation which amounted to an administrative practice for the purposes of Convention case-law” (point 2 of the operative part; emphasis added), but still considered it not necessary to examine “the same issues under Article 18”, because it “[had] already observed the existence of [that] administrative practice in breach of [the provisions of the Convention]” (§ 224). As we see, where the violations already found directly and insistently pointed to only one possible conclusion , that there was a “hidden agenda” behind them, the Court stopped at the point where the only thing which was left to do (and of which it was seised) was to state that there had been a violation of Article 18.

10. As if that were not enough, the scope of applicability of Article 18 was further narrowed by the finding that that Article was not applicable in conjunction with Articles 6 and 7, which, in the most unexpected view of one of the Chambers, contained no limitations on rights (see Navalnyy and Ofitserov v. Russia , nos. 46632/13 and 28671/14, 23 February 2016, followed by Navalnyye v. Russia , no. 101/15, 17 October 2017 ; compare and contrast the parallel case of Ilgar Mammadov v. Azerbaijan (no. 2) (no. 919/15, 16 November 2017), in which a different Chamber did not accept that stance, but left the question “open”). That new limitation on the applicability of Article 18 was in direct contradiction to the Court’s well ‑ established, decades-old case-law, including the seminal case of Golder v. the United Kingdom ([Plenary], no. 4451/70, 21 February 1975), in which Article 6 was interpreted as containing implicit limitations, or Kasparov and Others (no. 2) and Khodorkovskiy and Lebedev (both cited above) , in which the Court had no qualms about declaring the applicants’ complaints under Article 18 read in conjunction with Articles 6 or 7 admissible (even though it then refused to examine them or found no breach).

11. The result of this resourceful “judicial self-restraint” was that the list of applicants the political nature of whose grievances the Court found undeserving of examination or unproven (no matter what was commonly known about the worrying developments in the State concerned) included the names of prominent pro-democracy and pro-human rights activists (some of them imprisoned). Had the ratiocinations that their predicaments were not related to politics not been judicial findings but, say, media reports or analysts’ commentaries, they would have raised some eyebrows among those readers who were allergic to political propaganda or fake news.

12. But let us take a structural look at the “ Khodorkovskiy formula”. What does it mean, that the “political process and adjudicative process are fundamentally different”?

If the formula in question is a normative statement, then hardly anyone would reasonably argue against it. The nature of the two processes indeed should be different . So they must not be mingled – for the sake of liberty, the rule of law, and human rights.

If, however, that statement is a descriptive one, then, before dismissing the arguments as to the presence of a “hidden agenda” behind the violation(s), they must be subjected to the most thorough consideration, for the statement in question may not have much in common with reality. It happens in the real world – not in some “library law” – that the political and adjudicative processes coincide, go together hand in hand and form a unit . The very possibility of a breach of Article 18 signifies that the legal process can be – and, alas, in an increasing number of polities often is – subordinated to and subjugated by politics and made its servant. Otherwise such words as “dictatorship”, “autocracy” or “political persecution” would belong not to the vocabulary of political science, but to that of dystopian fiction. The whole idea of a “hidden agenda” rests on the unattractive possibility for the legal process to be an extension or even part of its political counterpart. When the Court is seised of allegations of a “hidden agenda” behind the violations of the applicants’ rights, its task and mission is to most thoroughly examine and rule on whether that possibility has not been made a reality . To go even further: if one takes seriously the imperative of “effective political democracy”, enshrined in the Preamble to the Convention and therefore underlying its whole fabric, that mission is constitutive of the Court’s very raison d’être .

The “ Khodorkovskiy formula” and its derivatives – such as “evidence in the legal sense”, “incontrovertible and direct proof” and “very exacting standard of proof” – therefore must be used with particular caution. The formula in question surely triggers the need to examine Article 18 complaints, because the judicial assessment of the adjudicative process encompasses the comparison of what is with what ought to be (the adjudicative process ought to be free of political interference, but is it?), but it cannot serve as an argument for the rejection of these complaints, because what ought to be is not (necessarily) what is . Notwithstanding that, in the Court’s case-law the “ Khodorkovskiy formula” (and its derivatives) performed both functions.

13. The scope of applicability of Article 18, not broad from the very outset, gradually shrank to such an extent that that Article has been labelled the “Cinderella of the Convention” [1] , referring of course to the beginning, not the happy end of that fairy tale. The answer to the eternal question “ qui bono? ” seems obvious: to that party for the benefit of which in dubio pro reo has been applied, and that party, as a rule, is the stronger , non-vulnerable party. But other questions remained: “why?”, “how come?” and “for how long?”

III

14. At some point it became too obvious that enough was enough. The applicant-unfriendly “very exacting standard of proof” in its extremely restrictive interpretation had to be abandoned. The Court had to do something about it.

15. It did. The breakthrough, although overdue, was ventured in Ilgar Mammadov v. Azerbaijan (no. 15172/13, 22 May 2014) and Rasul Jafarov v. Azerbaijan (no. 69981/14, 17 March 2016). In these two groundbreaking cases the Court took a much more realistic approach to the proof required for the validation of Article 18 complaints, namely that the notion of “evidence in the legal sense” was not limited to “incontrovertible and direct proof” adduced by the applicants.

16. In Ilgar Mammadov (cited above) the Court referred to its practice of applying the “very exacting standard of proof” (§ 138), as well as to the “ Khodorkovskiy formula” (§ 140), but then immediately “[took] note of the various opinions about the applicant’s case which suggest[ed] that he was subjected to politically motivated prosecution” and of “the circumstances of the present case [which] suggest[ed] that the applicant’s arrest and detention had distinguishable features which allow[ed] the Court to analyse the situation independently of various opinions voiced in connection with this case” (ibid.). The Court stated that its prior conclusion that “the charges against the applicant were not based on a ‘reasonable suspicion’ within the meaning of Article 5 § 1 (c)” was “in itself ... not sufficient to assume that Article 18 was breached” and that “it remain[ed] to be seen whether there [was] proof that the authorities’ actions were actually driven by improper reasons” (§ 141). It then proceeded to analyse whether such proof followed from “the combination of the relevant case-specific facts”, and in particular from “all the material circumstances which it ha[d] had regard to in connection with its assessment of the complaint under Article 5 § 1 (c)”, and considered it “established to a sufficient degree” that it did. In the Court’s view, these circumstances indicated that “the actual purpose of the impugned measures was to silence or punish the applicant for criticising the Government and attempting to disseminate what he believed was the true information that the Government were trying to hide”. The measures had thus been applied for purposes “other than bringing him before a competent legal authority on reasonable suspicion of having committed an offence, as prescribed by Article 5 § 1 (c)”. On that basis the Court found a violation of Article 18 read in conjunction with Article 5 (§§ 141-44). Thus, the notion of “evidence in the legal sense”, formally left intact, was impregnated with new, broader content : it now included more than “incontrovertible and direct proof”, to which its previous overly restrictive interpretation had been confined. It was demonstrated that the Court was itself able and ready to draw logical inferences from the combination of relevant facts, that is to say, the contextual, or circumstantial, evidence .

17. In Rasul Jafarov (cited above), the Court went one step further. In that case (as in Ilgar Mammadov , cited above) the Court referred to the “very exacting standard of proof” (§ 154) and to the “ Khodorkovskiy formula” (§ 155), but then stated that “the applicant’s arrest and prosecution, together with the cases of other human rights defenders and government critics, [had] been the subject of heavy international criticism” and (in identical wording to Ilgar Mammadov ) that “the circumstances of the present case suggest[ed] that the applicant’s arrest and detention had distinguishable features which allow[ed] the Court to analyse the situation independently of the various opinions voiced in connection with this case” (§ 155). It then proceeded to conduct its own analysis of the contextual evidence. As the Court’s conclusion that “the charges against the applicant were not based on a ‘reasonable suspicion’ within the meaning of Article 5 § 1” was (again, using identical wording to Ilgar Mammadov ) “ in itself ... not sufficient to assume that Article 18 was breached”, it held that, “depending on the circumstances of the case, improper reasons [could not] always be proven by pointing to a particularly inculpatory piece of evidence which clearly reveal[ed] an actual reason ... or a specific isolated incident”, but it could be “established to a sufficient degree that proof of improper reasons follow[ed] the combination of relevant case-specific facts”, and that “the applicant’s situation [could not] be viewed in isolation”. The facts examined by the Court included “the general context of the increasingly harsh and restrictive legislative regulation of NGO activity and funding [which could not] be simply ignored”, “the numerous statements by high ‑ ranking officials and articles published in the pro-government media, where local NGOs and their leaders, including the applicant, were consistently accused of being a ‘fifth column’ for foreign interests, national traitors, foreign agents, and so on”, and the fact that “[s]everal notable human rights activists who [had] cooperated with international organisations for the protection of human rights, ... [had been] similarly arrested and charged with serious criminal offences entailing heavy imprisonment sentences”. Those facts were analysed in the context of the submissions of the third-party interveners, who (as in the present case) included the Council of Europe Commissioner for Human Rights. The latter testified that the case under examination “was an illustration of a serious and systemic human rights problem in Azerbaijan, which, in spite of numerous efforts by the Commissioner and other international stakeholders, to date remained unaddressed”. The Court considered that the contextual facts “support[ed] the applicant’s and the third parties’ argument that his arrest and detention were part of a larger campaign to ‘crack down on human rights defenders in Azerbaijan’”, and that “[t]he totality of the above circumstances indicate[d] that the actual purpose of the impugned measures was to silence and punish the applicant for his activities in the area of human rights”. On that basis it found a violation of Article 18 read in conjunction with Article 5 (§§ 156-63). Thus it was demonstrated not only that the Court was itself able and ready to draw logical inferences from the contextual evidence, but also that that evidence could include proof presented not by the applicants themselves, but by other persons , in particular the third-party interveners.

18. In short, in the two cases discussed above the Court’s approach to what constituted “evidence in the legal sense” was substantially modified in comparison with the Khodorkovskiy line of judicial reasoning, in three important respects : (i) it accepted that the admissible evidence could be not only “direct”, but also contextual (circumstantial) ; (ii) the Court considered that it could itself undertake an independent analysis of that contextual evidence; and (iii) it was allowed that the proof that there was an ulterior purpose could be furnished not necessarily by the applicants, but also by other persons , including third-party interveners (who in such cases were often non-governmental organisations, but also officials of the Council of Europe or the United Nations), international observers, the media, and so forth.

19. The new approach to the Court’s standard of proof in Article 18 cases was validated and reinforced in the Grand Chamber’s landmark judgment in Merabishvili v. Georgia ([GC], no. 72508/13, 28 November 2017), in which the Grand Chamber reassessed and streamlined the Court’s Article 18 case-law. Merabishvili promised a fairer approach to the grievances of the victims of political persecution and, so to say, redeemed the Court of its protracted irresolution – albeit ex post facto and partially, as it allowed for a finding of no violation of Article 18 if the alleged ulterior purpose, although present, did not constitute a “fundamental aspect” of the case (§ 291; Merabishvili’s own rough edges or inconsistencies, whatever they might be – including those noted by the judges who wrote separate opinions in that case – do not undermine its overall significance, and in any case are not the subject of this opinion).

20. But not only that. The Grand Chamber made it explicit that in several of the Court’s previous judgments in which the Court had been unwilling to give credence to the applicants’ Article 18 complaints, the standard applied (settled as it had seemed at that time) was a flawed one. It specifically noted three judgments, all adopted in cases against Russia: Khodorkovskiy ; OAO Neftyanaya Kompaniya Yukos ; and Khodorkovskiy and Lebedev (all cited above ; however, more judgments, not only against Russia, could be considered as candidates to join the list) . The Grand Chamber thereby effectively denounced these judgments – that is, the parts of them examining the Article 18 complaint – to the extent that any court can allow itself to publicly discredit its own case-law (see Merabishvili , cited above, §§ 275, 276, 279 and 309), which was a fair and strong-minded undertaking.

More specifically, in contrast to the “very exacting standard of proof” which culminated in the three above-mentioned cases, the Grand Chamber made clear in Merabishvili that in establishing whether there was an ulterior purpose behind the violation found (and whether it was the predominant one), the Court “should adhere to its usual approach to proof rather than special rules ” (ibid., §§ 309 and 310; emphasis added) and that “[t]here [was] ... no reason for the Court to restrict itself to direct proof in relation to complaints under Article 18 ... or to apply a special standard of proof to such allegations” (ibid., § 316). It emphasised the need to pay due regard to “ circumstantial evidence [which] mean[t] information about the primary facts, or contextual facts or sequences of events which [could] form the basis for inferences about the primary facts ... Reports or statements by international observers, non-governmental organisations or the media, or the decisions of other national or international courts [were] often taken into account to, in particular, shed light on the facts, or to corroborate findings made by the Court” (ibid., § 317; emphasis added). This is not to say that the Grand Chamber decided that it could henceforth base its decisions on proof that was not “evidence in the legal sense”. Not at all: it merely aligned the Court’s overly restrictive, hitherto distorted interpretation of the notion of “legal sense” with common sense .

For the “legal sense” must not only be “legal”. In the first place it must be “sense”.

Merabishvili rehabilitated common sense in the Court’s reasoning in Article 18 cases and heralded a rapprochement of the Article 18 case-law with common knowledge . It also brought the Court’s standard of proof in line with that applied by other “European courts” , which in Khodorkovskiy the Court had irresponsibly and haughtily dismissed as inferior, or perhaps not “legal” enough (see paragraphs 21 and 22 below). Quite soon this approach was employed and further consolidated in Navalnyy v. Russia (nos. 29580/12 and 4 others, 15 November 2018), another Grand Chamber case, as well as in several Chamber cases against Azerbaijan.

IV

21. The present judgment abandoned Merabishvili (cited above), while at the same time retaining part of its facade. To be sure, some relevant paragraphs of that judgment are cited (see paragraph 250 of the judgment, where reference is made to §§ 310-17 of Merabishvili ). This is an optical artifice. In the same paragraph 250 of the present judgment it is observed that the Court must “base its decision on ‘evidence in the legal sense’, in accordance with the criteria laid down by it in ... Merabishvili ... and on its own assessment of the specific facts”. However, with regard to the Court’s “own assessment of the specific facts”, reference is made to three pre- Merabishvili cases (all cited above): not only to Ilgar Mammadov and Rasul Jafarov , in which that “own assessment” was undertaken and a violation of Article 18 was found, but also to Khodorkovskiy , in which this “own assessment” was absent and the “specific facts” were not recognised as “evidence in the legal sense”, but, at best, only as “appearances” (resulting in the finding of no violation of Article 18). The paragraphs of Ilgar Mammadov and Rasul Jafarov cited in the present judgment refer to Khodorkovskiy , which these two judgments distinguished and distanced themselves from. Merabishvili upheld and reinforced that distinction and explicitly rejected Khodorkovskiy’ s equating of “evidence in the legal sense” with “direct and incontrovertible proof”, rooted in the “ Khodorkovskiy formula”.

The references to Khodorkovskiy and Merabishvili provided in the present judgment are thus misleading. Contrary to what this judgment suggests, Khodorkovskiy , while ostensibly conceding the possibility of the “reasonable” admission of contextual evidence of a “hidden agenda”, effectively did not allow for its admission and examination, in particular (and even more so) of evidence not adduced by the applicants (see paragraphs 6 and 7 above). If one judges not by mere words but by whether they are ever made reality, Khodorkovskiy in fact did not allow such admission and examination, not one jot, because the “reasonable inference from the context” clause (see paragraph 6 above) was never applied, not even in circumstances where its application was the only way to lead the case to its logical end, and thus remained only theoretical and hypothetical – until Ilgar Mammadov broke the mould. In Khodorkovskiy itself the Court refused to make its “own assessment of the specific facts”. It simply stated that it “took note” of the fact that “the combination of ... factors ... [had] caused many people to believe that the applicant’s prosecution was driven by the desire to remove him from the political scene and, at the same time, to appropriate his wealth” (§ 259). Among these factors was “[t]he fact that the suspect’s political opponents or business competitors might directly or indirectly benefit from him being put in jail” (§ 258). The Court admitted that “the applicant’s case [might] raise a certain suspicion as to the real intent of the authorities, and that this state of suspicion might be sufficient for the domestic courts [elsewhere referred to as “several European courts”] to refuse extradition, deny legal assistance, issue injunctions against the Russian Government, make pecuniary awards, etc.” (§ 260; emphasis added). It even assumed that “all courts had the same evidence and arguments before them”. All that notwithstanding, the Court declared that “ its own standard of proof applied in Article 18 cases [was] very high and [might] be different from those applied domestically”. It coined (for the first time in its case-law) the “ Khodorkovskiy formula”, which posited the “fundamental difference” between the “political process and adjudicative process” (as if those other courts examined the facts not from a legal but from a political standpoint), and added that “[i]t [was] often much easier for a politician to take a stand than for a judge, since the judge [had to] base his decision only on evidence in the legal sense” (§§ 259 and 260). The Court thus sidestepped the issue and dismissed the allegations of ulterior purpose.

In other words, in Khodorkovskiy the Court contradistinguished the examination of “evidence in the legal sense”, interpreted at that time as “incontrovertible and direct proof”, from its “own assessment” of the relevant case-specific facts taken in combination, and rejected the very possibility of its “own assessment” by declaring that “incontrovertible and direct proof” was “absent from the case under examination”. It also most forcefully contradistinguished its overly restrictive approach to what was “evidence in the legal sense” from that applied by other “European courts” (§§ 259 and 260). In Article 18 cases it placed itself in opposition not only to the legal standards as understood by other courts (“European courts”), but also to common knowledge.

Merabishvili heralded the abandonment of that opposition. The present judgment shows that it has not been abandoned.

22. The judgment in Merabishvili (cited above) mentions “evidence in the legal sense” only once – in § 275, where Khodorkovskiy (cited above) is recapitulated. That is it. Then the approach taken in the latter, as set out in § 259 thereof, is rejected (§§ 309-17). The reference in paragraph 250 of the present judgment to § 259 of Khodorkovskiy , alongside §§ 309-17 of Merabishvili , without even a hint that the former was denounced by the latter and thus disqualified , is too indiscriminate and uncritical to be allowed to pass unnoticed.

For the sake of objectivity it must be noted that this indiscriminate referencing is not the invention of the present judgment (compare the case mentioned in paragraph 38 below). However, what matters most is that in the present case (unlike in that other one), this indiscriminate approach took on concrete form in an unconvincing outcome of the examination of the applicants’ complaint under Article 18.

Be that as it may, the present judgment, while paying lip service to Merabishvili , effectively restored the doctrine which had been denounced and disqualified by that judgment, and implicitly granted it the status of the methodological basis for the examination of the applicants’ Article 18 complaints in this case.

23. In a similar vein, the present judgment also rejected Ilgar Mammadov and Rasul Jafarov (both cited above), while at the same time citing them. These citations are no less misleading than the references to Khodorkovskiy and Merabishvili (cited above) discussed in the preceding paragraphs. For instance, paragraph 250 of the present judgment cites § 140 of Ilgar Mammadov and § 155 of Rasul Jafarov , which contain the “ Khodorkovskiy formula”, but not §§ 141-44 or §§ 156-63 respectively of those judgments, in which the Court considered that it could accept not only “direct”, but also contextual evidence – which it did; that it could itself undertake an independent analysis of that contextual evidence – which it also did; and that the proof of an alleged ulterior purpose could be furnished not necessarily by the applicants, but also by other persons – which in those cases was done too.

24. One might have hoped that after Merabishvili (and Navalnyy , both cited above) the standard of “incontrovertible and direct proof” was not going to make a comeback. That hope was premature. The comeback took place – in the present judgment. Even though the expression “incontrovertible and direct proof” is not used verbatim in the Chamber’s reasoning, the “very exacting standard of proof” in its earlier most restrictive interpretation is implicitly present there – by virtue (or rather by vice) of the reference to the “ Khodorkovskiy formula”.

By putting Khodorkovskiy on an equal footing with Merabishvili – the Grand Chamber case which discredited and disqualified the approach underlying Khodorkovskiy (and with Ilgar Mammadov and Rasul Jafarov , cited above, and also Navalnyy ) – the Chamber has blended them into one doctrinal basis for Article 18 cases. If that blending is weaponised in future Article 18 cases (for there are no guarantees that this is not going to happen), then the present judgment could be said to have contributed to disabling Merabishvili and putting it on life support.

25. The upside-down referencing discussed in paragraphs 21-23 above to Khodorkovskiy , and also to Ilgar Mammadov , Rasul Jafarov and, most importantly, Merabishvili (all cited above), and not in any contraposition or at least juxtaposition to these last three cases, reveals one more problem, which is not limited to Article 18 case-law but is of a more general nature. That problem is that perhaps there are no antidotes against citations of the Court’s case-law (correct and precise as they may be in themselves) being used, in subsequent cases, contrary to their purport, meaning or significance in the specific context or the specific line of reasoning and thus reversing (not necessarily intentionally) the progress already achieved by the law of the Convention as a living instrument – to the detriment of the victims of political persecution and to the encouragement of the regimes persecuting them.

V

26. The pre- and (therefore) anti- Merabishvili methodology of the examination of the Article 18 complaints reverted to in the present judgment is not only overly restrictive and formalistic. It also does not recognise such things as system, synergy and policy . For what to an objective observer is a system , in which (and because) the facts, examined in combination, reinforce each other and allow it to be established that there was a policy behind the violations amounting to a “hidden agenda”, is regarded by this methodology – and by the present judgment – as merely a series of coincidences, no matter how plentiful and how concerted. The conclusions reached on the basis of this outdated and (to put it mildly) dubious methodology are liable to be strikingly at odds with what everybody knows.

That is the situation in the present case concerning Cumhuriyet .

27. In this case, the conclusion regarding the applicants’ Article 18 complaints is simply unconvincing and unreliable in view of the abundant authoritative international materials on the ongoing suppression of civil society in Turkey following the abortive 2016 military coup. A large volume of these materials was presented to the Court by the third-party interveners, among them the Council of Europe Commissioner for Human Rights, the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, and several NGOs. They testify to the erosion of the independence of the domestic judiciary, but especially to the crackdown on the media being consistently carried out by the Turkish authorities. They unequivocally point to an actual policy of the State, not to random errors by the authorities .

28. Despite the overwhelming relevance of the third-party interveners’ submissions, they are presented only formally in the present judgment (see paragraphs 244 ‑ 47; see also the references in paragraph 105). They are then assessed in the most blanket, generalised form possible, with the Court “noting” that “the measures in question [taken against the applicants], and those taken in the context of the criminal proceedings brought against other opposition journalists in Turkey have been heavily criticised by the third-party interveners” (see paragraph 250), before being put aside without any apparent consideration, but with the importuning Khodorkovskiy reminder that, “as the political process and adjudicative process are fundamentally different, the Court must base its decision on ‘evidence in the legal sense’” (ibid.), as if these submissions were not based on legal considerations (in addition to the interveners’ in-depth factual knowledge of the situation).

The whole “assessment” of the third-party interveners’ arguments fits in one sentence .

If the Court is sceptical as to the views of the third-party interveners, especially those of the Council of Europe Commissioner for Human Rights and the United Nations Special Rapporteur(s), and does not give them credence, it should not be a surprise if readers are sceptical of and do not give credence to its findings. Qui bono ?

29. Even if the third-party interveners’ submissions have not been duly taken into consideration (only “noted”, which is not the same thing), it cannot be said that the present judgment (or the part dealing with the Article 18 complaints) does not devote any space to the analysis of whether various factual circumstances do not disclose the alleged improper ulterior purpose. It does – over almost three pages.

But let us have a closer look at what is analysed there – and how .

30. The Chamber reiterates its prior conclusion that the charges against the applicants were not based on “reasonable suspicion”, but states that this “would not by itself be sufficient to conclude that Article 18 has also been violated” (paragraph 252) – as in Ilgar Mammadov and Rasul Jafarov (both cited above; compare Merabishvili , cited above, § 291). So far so good.

The Chamber then reasons that it was legitimate to carry out investigations into incidents that might have been related to the military coup, and that no “excessive length of time elapsed between the impugned acts and the opening of the investigation in the course of which the applicants were placed in pre-trial detention” (paragraphs 253-54). Again, no objection.

31. The reasoning then takes a peculiar turn. The Chamber attempts to justify facts which it is not so easy – in my opinion, not possible at all – to justify.

The statements of the President of the Republic, one of which is even labelled (rightly so) as being “clearly in contradiction with the basic tenets of the rule of law”, are nonetheless considered justified on the basis that they “were not directed against the applicants themselves but rather against the newspaper Cumhuriyet as a whole under the editorial direction of C.D.” (paragraph 255). What is that supposed to mean: that the newspaper “as a whole” existed on its own, and its journalists, editors and managers were separate from it ? Who would believe that?

It is also stated that “such an expression of dissatisfaction [with the Constitutional Court’s decision] does not amount to evidence that the applicants’ detention was ultimately motivated by reasons incompatible with the Convention” (ibid.). The question is: what was it that was capable of downgrading the clear manifestation of political pressure on the judiciary to an innocent “expression of dissatisfaction”, as if it was pronounced by, say, a law professor at a constitutional-law seminar? No, the relevant public statement by the President of the Republic was anything but innocent , and given the whole course of events it was a declaration of intent, as realistic as one could be – for “you don’t need a weatherman to know which way the wind blows” [2] .

The Chamber even accepts that “statements made in public by members of the government or the President concerning criminal proceedings against applicants could, in some circumstances , constitute evidence of an ulterior purpose behind a judicial decision” (ibid.; emphasis added). It is legitimate to ask: in what “some” circumstances? Or rather: what were those other circumstances which, so to say, decontaminated the statements in question? No explanation to that effect is provided.

Prominence is given to the Constitutional Court’s finding that the suspicions against two persons were unconstitutional (ibid.). But that is irrelevant, for that highest-ranking court did not rule on whether there was any “hidden agenda” behind that persecution – that, again, is not even mentioned in the Chamber’s reasoning.

And so on.

The Chamber even accepts that the applicants’ detention not only had a chilling effect on them, but was also “liable to create a climate of self ‑ censorship affecting ... all journalists reporting and commenting on the running of the government and on various political issues of the day” (paragraph 256; emphasis added). So what? “All in all, it’s just another brick in the wall” [3] .

The Chamber then reasons that “the elements relied on by the applicants in support of a violation of Article 18 ..., taken separately or in combination with each other , do not form a sufficiently homogeneous whole for the Court to find that the applicants’ detention pursued a purpose not prescribed by the Convention and representing a fundamental aspect of the case” and that “it has not been established beyond reasonable doubt that the applicants’ pre-trial detention was ordered for a purpose not prescribed by the Convention within the meaning of Article 18” (ibid.; emphasis added). The Chamber concludes that “there has been no violation of Article 18 ... in the present case” (ibid.). In Kasparov and Others (no. 2) (cited above) the Court found that its findings of violations of various provisions of the Convention meant that there was no need to examine the applicants’ Article 18 complaints (see paragraph 9 above). The finding in the present case is very similar to that one, the only difference being that the “no need to examine” formula has been replaced by what in essence could be worded as “whatever the facts, and no matter how many suspicious facts there are, all this does not amount to an improper ulterior purpose”. When it comes to exonerating authority, pandering to the regime and contributing to the regime’s feeling of impunity, the finding is effectively the same.

32. To sum up, a justification is given for each fact examined separately (although not all of the relevant facts are so examined; see, for example, paragraph 34 below). Although the (in my opinion, discredited) term “appearances”, which played such a prominent role in Khodorkovskiy and Lebedev (cited above), does not feature in the Chamber’s reasoning in the present judgment, all the facts that are analysed are treated as nothing but coincidental “appearances”.

33. Even if one accepts the assumption (unrealistic as it is) that each of the above findings in itself is not sufficient to conclude that there has been a “hidden agenda” and, consequently, a violation of Article 18, the conclusion that they are not sufficient in combination with each other is far-fetched. In the part of the judgment dealing with the Article 18 complaints that conclusion is not supported by any reasoning. Not a single sentence.

For the third-party interveners, who are well aware not only of the facts of the present case but also of its context , the opposite was obvious. As mentioned, their submissions were presented – and then not duly considered.

34. The assumption hypothetically accepted in the preceding paragraph is itself as feeble as one can be. There are serious grounds to assert that some of the impugned facts are in and of themselves sufficient to conclude that there has been a violation of Article 18.

To take just one of them, how was it possible to conclude that there was no “hidden agenda” in view of this rogue public statement by the President of the Republic: “Whoever wrote this article will pay dearly, I will not let the matter rest there” (see paragraph 237 of the judgment) [4] ? Indeed, the matter was not put to rest. The threat (for what else was it?) materialised. But in the Court’s assessment of the applicants’ Article 18 complaints that statement is not assessed, or even dealt with separately . That part of the judgment refers to the President’s “statements” in the plural and then narrows their examination to virtually just one of them, in which the President, in the Chamber’s opinion, merely expressed his “dissatisfaction” with the Constitutional Court’s decision (see paragraph 30 above).

But what about the direct threat from the most powerful political actor on the national stage to the effect that whoever wrote this article would pay dearly? Also a mere “dissatisfaction”? Or (compare paragraph 31 above) was this statement also directed “against the newspaper Cumhuriyet as a whole” but not against the applicants, and could it “constitute evidence of an ulterior purpose behind a judicial decision” only “in some circumstances”?

35. And what about other contextual facts, likewise not assessed either separately or in combination? For instance, in Rasul Jafarov (cited above) the Court considered that “the general context of the increasingly harsh and restrictive legislative regulation of NGO activity and funding [could not] be simply ignored in a case like the present one” (§ 159): that regulation served as one of the contextual elements which led to the finding of a violation of Article 18. The legislation dealt with in the present case is not new for the Court – it features in numerous cases (in which violations of Convention provisions have been found). Could it – not the text of the law as such, but the practice of its interpretation and application to media players – be assessed as “harsh and restrictive”? This is only a question, by the by.

36. What is much more important is that the present case is not an isolated one . It is part of a series of cases (some pending, some already decided) on the same matter: the silencing, in post-military coup Turkey, of civil society in general and the media in particular. These developments have been noted and confirmed by countless (I believe objective) observers worldwide. They have been in the news on an almost daily basis – and still are [5] .

The third-party interveners presented their submissions in the present case to the Court in the same document as their submissions regarding the applications in other cases. And for good reason, since they regarded all these individual cases (including the present one) as related to each other and disclosing a pattern of conduct on the part of the Turkish authorities vis-à-vis their opponents. These cases are thus seen as united by the synergy and system in the authorities’ actions against various applicants and the policy behind those actions .

The treatment of the present case as part of a broader picture stems from a realistic and objective approach to the impugned facts, of which there is common knowledge, and that common knowledge is supported by common sense. Should due credence to the common knowledge which is revealed, inter alia , in the third-party interveners’ submissions not also constitute the basis for the Court’s examination – which, of course, must be based on the “legal sense” – of the facts presented to it? In other words, should common knowledge and common sense, which both point to a policy on the authorities’ part, not enlighten the judicial “legal sense”?

Where there is a policy behind the violations found, it is impermissible to conclude that there has been no ulterior purpose. Moreover, that ulterior purpose constitutes prima facie a fundamental aspect of the case (see Merabishvili , cited above, § 291). To hold otherwise, very weighty reasons would be needed. If, in the Court’s analysis and balancing of the facts and arguments for and against the finding of a “hidden agenda”, some arguments speaking in favour of such a finding are suppressed, that examination cannot be considered sufficiently thorough and explicit, with all the ensuing consequences for the plausibility of the finding of no violation of Article 18 (see paragraph 4 above).

37. It would have been more difficult for me to object to the Chamber’s finding of no violation of Article 18 had it reasoned that although there was an improper ulterior purpose behind the violations found in the present case, that purpose nonetheless was not predominant, that is, it did not constitute a fundamental aspect of the case.

But in this case in fact no ulterior purpose was found whatsoever . That is strikingly at odds with what is commonly known (both outside and inside the Court) about developments in Turkey following the abortive 2016 military coup, and what is vividly reflected in the third-party interveners’ submissions.

The closest the Chamber comes to admitting that the alleged ulterior purpose was present in – and behind – the applicants’ predicaments is when it reasons that the impugned “expression of dissatisfaction [with the Constitutional Court’s decision] does not ... amount to evidence that the applicants’ detention was ultimately motivated by reasons incompatible with the Convention” (see paragraph 255 of the judgment, cited in paragraph 31 above, emphasis added; see also paragraph 252 of the judgment), but that half-admission is immediately neutralised by the finding that this purpose was not “ultimate”, that is, it did not constitute a fundamental aspect of the case. There is no analysis, however, of the factual, legal or (methodo) logical basis on which it is considered not to have been “ultimate”, especially in the context of the various other (so numerous) impugned acts.

Court judgments are published on paper. Paper can endure anything, for it is insensitive and irresponsive to whatever judicial truth is published on it. But it is expected that the judicial truth should resemble the actual truth.

VI

38. There are not insignificant grounds for concern as to how Article 18 has been dealt with in the Court’s case-law, both prior to and (regrettably) after Merabishvili (cited above) [6] . Since the adoption of that judgment, there have been cases in which the Court took a principled stance on Article 18 complaints. Among those one might mention, for instance, Kavala v. Turkey (no. 28749/18, 10 December 2019). By the way, Kavala (§ 217) also makes reference to the “ Khodorkovskiy formula” alongside the paragraphs of Ilgar Mammadov and Rasul Jafarov mentioned in paragraph 23 above (all cited above; however, in Kavala there are more very pertinent citations from the last two cases). But in Kavala the Court’s treatment of the contextual evidence, including that presented by the third-party interveners, differed substantially from the treatment undertaken in the present case and (despite the succinct reference to that evidence in the relevant part of the judgment) led to a different finding.

39. Substantial progress in the treatment of Article 18 complaints is still somewhere on the horizon.

The present judgment has moved that horizon farther away.

[1] . Among recent publications see, for instance, C. Heri, “Loyalty, Subsidiarity and Article 18 ECHR: How the ECtHR Deals with Mala Fide Limitations of Rights”, in European Convention of Human Rights Law Review 1 (2020).

[2] . Bob Dylan, “Subterranean Homesick Blues”, from Bringing It All Back Home , 1965, Columbia Records.

[3] . Pink Floyd, “Another Brick in the Wall – Part 2”, from The Wall , 1979, Harvest.

[4] . One outspoken critic of the President commented on the lack of respect for judicial decisions, as reflected in this very statement by the President (and his other utterances of this kind), in the following way: “[r]espect for court decisions [is demanded by the President] only when they resulted in his opponents being imprisoned”. She then concluded: “respect is [a] one-way street ...: he only accepts being on the receiving end”. See E. Temelkuran, “How to Lose a Country: The Seven Steps from Democracy to Dictatorship” (London: 4th Estate, 2019), p. 35.

[5] . Somewhat ironically, at just about the same time when the Chamber was deliberating in the present case, the Council of Europe published a book on the political persecution of journalists in which considerable attention is devoted to developments in Turkey. See M. Clark, W. Horsley, “A Mission to Inform: Journalists at Risk Speak Out” (Strasbourg: Council of Europe, 2020). The Court is a body of the Council of Europe, is it not?

[6] . On this subject, I refer to my article “Wrestling with the ‘Hidden Agenda’: Toward a Coherent Methodology for Article 18 Cases”, in K. Lemmens, S. Parmentier, L. Reyntjens (eds.). Human Rights with a Human Touch: Liber amicorum Paul Lemmens . Cambridge, Antwerp, Chicago: Intersentia, 2019.