JOINT PARTLY DISSENTING OPINION OF JUDGES LÓPEZ GUERRA, KELLER AND PASTOR VILANOVA

1 . As regards the applicant ’ s allegations under Article 18 of the Convention taken together with Article 5, we are regretfully unable to subscribe to the majority ’ s conclusion that it was not necessary to examine this complaint in the present case. For the reasons set out below, we consider that this matter warranted a more detailed examination by the Court.

2 . Article 18 of the Convention, as Judge Keller has written elsewhere, may be an accessory provision (as was made clear, for example, in Gusinskiy v. Russia , no. 70276/01, § 73, ECHR 2004-IV). However, this does not mean that there is no need to examine complaints made under that provision where the Court finds a violation of the Convention right or freedom in conjunction with which it has been invoked. Article 18 protects a legal interest separate from that protected by, for example, Article 5 of the Convention; any other conclusion would deprive the provision of a reasonable and independent scope of application (compare, in overall terms, the partly dissenting opinion of Judge Keller in Kasparov v. Russia , no. 53659/07, § 3, 11 October 2016) [1] .

3 . The separate legal interest protected by Article 18 is the prevention of “a specific injustice, namely the undermining of Convention rights whereby legitimate justifications are improperly invoked as a pretext in order to conceal an ulterior motive” (see the partly dissenting opinion of Judge Keller in Kasparov , cited above, § 4, with further references to the travaux preparatoires of the Convention [2] ). For example, the Court has found that Article 18 was violated where a prominent opposition politician was deprived of her liberty without proper justification ( Tymoshenko v. Ukraine , no. 49872/11, § 300, 30 April 2013) and where measures were taken against an oppositional actor to “silence or punish the applicant for criticising the Government” ( Ilgar Mammadov v. Azerbaijan , no. 15172/13, §§ 142-43, 22 May 2014). In short, the provision serves to address the abusive limitation of the rights of oppositional actors with the aim of silencing them (see, in overall terms, the partly dissenting opinion of Judge Keller in Kasparov , cited above, § 4).

4 . Against this background, and while the proceedings against the applicant in the present case were admittedly administrative in nature and the duration of his deprivation of liberty was not particularly long in any of the instances concerned, we are concerned about the repetitive and targeted nature of the violations of Article 5, in particular, found in this case. The repetitive, systematic or targeted arrest of activists such as the applicant can have a chilling effect on political expression and stifle the activity of oppositional actors. As a result, depriving individuals such as the applicant of their liberty without further justification as a method of supressing criticism falls squarely within the scope of Article 18 of the Convention.

5 . Given the above, and in the light of all the circumstances of the case, we are convinced that the applicant has established a prima facie case of a violation of his rights under Article 18. He has credibly argued that his repeated arrests were linked to a hidden agenda to silence and intimidate him as a political dissident, in particular given the nature of his activities and the number of unjustified arrests that he endured during a relatively short period of time. Admittedly, the level of proof necessary in order for the Court to find a violation of Article 18 on the merits is a relatively high one, albeit one that has been subject to much-needed mitigation in recent years [3] . However, in the present case the Court did not even enter into an examination on the merits, thus perpetuating the sidelining that Article 18 has suffered elsewhere in the Court ’ s case-law.

6 . We consider that the majority ’ s approach to Article 18 in this case does not do justice to the provision itself, which has once again been deprived of a reasonable scope of application. It also negates the fact that the applicant ’ s rights – hence, the rights of a prominent oppositional actor – were violated in conspicuously repeated fashion. The fact that the Court found violations of Articles 5, 6 and 11 in this case does not do justice to the abusive aspect of this case. Therefore, we cannot agree with the majority ’ s decision to acknowledge that “the applicant ’ s arrest and administrative detention had the effect of preventing and discouraging him and others from participating in protest rallies and actively engaging in opposition politics” (see paragraph 79 of the majority ’ s judgment), which would seem to fall squarely under Article 18, but not to examine Article 18 on the merits.

PARTLY DISSENTING OPINION OF JUDGE KELLER

1 . To my regret, I am unable to agree with my colleagues in the matter of the awards made under Article 41 of the Convention in the present case. For the reasons set out below, I consider that the amount awarded to the applicant in respect of non-pecuniary damage was insufficient.

2 . At first sight, admittedly, the amount awarded to the applicant in the light of the violations of Articles 5, 6 and 11 of the Convention found in the present judgment is a generous one. My colleagues granted the applicant EUR 50,000 in respect of non-pecuniary damage. However, while I agree with the majority that it was certainly necessary to make an award in this respect given the frustration and suffering endured by the applicant, I do not agree with the manner in which the award was calculated.

3 . In this regard, I would like to draw a parallel with the 2016 Frumkin v. Russia case (no. 74568/12, ECHR 2016). While all of the Court ’ s judgments and decisions are made on the basis of the individual circumstances and allegations at stake in a particular case, and there is no system of binding precedent in the Strasbourg case-law, it is nonetheless possible to use that judgment to illustrate the point to be made here. The relevance of the Frumkin judgment stems from the fact that the allegations made against the respondent State therein concern a matter similar to that at stake here, and the violations of the Convention found are comparable. In addition, both cases concern the same respondent State. However, the applicant in Frumkin was awarded EUR 25,000 in respect of the violations of Articles 5, 6 and 11 of the Convention found in that case (see Frumkin , cited above, § 182). This is interesting for present purposes because the applicant in Frumkin brought one application complaining about his arrest, detention and conviction stemming from one public assembly. In the case before it here, however, the Court is considering five separate applications brought by the applicant concerning his arrest on seven occasions at different public events (see paragraph 6 of the majority judgment in the present case).

4 . This comparison brings me to the reason why I could not vote with the majority in this case as regards the award made under Article 41. The reason is that, although Mr Navalnyy ’ s rights were violated in the context of seven different arrests, he was awarded just twice the amount of compensation awarded to an applicant whose rights were violated on only one occasion, as shown by the example of the Frumkin case. In effect, each of Mr Navalnyy ’ s arrests was compensated for by less than a third of the amount by way of just satisfaction that Mr Frumkin received for the violations of his rights suffered in conjunction with his arrest. While the awards made under Article 41 depend on a number of factors, and no two cases are identical in this or other regards, this is a glaring difference that accordingly demands an explanation. The question here, then, is whether it is justified to reduce the amount of compensation awarded to Mr Navalnyy for the individual violations of his rights in the light of the fact that they occurred on multiple occasions.

5 . In this regard, I would like to point out that the ratio of Rule 42 § 1 of the Rules of Court of 14 November 2016, which permits the joinder of two or more applications at the request of the parties or of the Court ’ s own motion, is not and cannot be to prejudice the applicants ’ complaints or minimise States ’ responsibility, but to promote a more efficient Court.

6 . As a result, in my opinion, there can be no justification for lowering the amount of the award made under Article 41 where repeated violations are in issue. The majority ’ s approach devalues the gravity of the individual violations of his rights suffered by the applicant, and seems to negate the seriousness of the fact that the authorities repeatedly targeted the applicant, a political dissident and activist. There is no reason why it should be more affordable for States to violate an individual ’ s rights in bulk.

APPENDIX

List of applications

[1] See also Keller , Helen and Heri , Corina, “Selective C riminal Proceedings and Article 18 of the European Convention on Human Rights’ Untapped Potential to Protect Democracy”, in Human Rights Law Journal (2016), 1-10, at 8.

[2] Statement by Pierre-Henri Teitgen (France), orally presenting the report of the Legal Committee at the first session of the Consultative Assembly of the Council of Europe, in “Collected Edition of the ‘ Travaux Preparatoires ’ of the European Convention on Human Rights, Volume I: Preparatory Commission of the Council of Europe, Committee of Ministers, Consultative Assembly (11 May-13 July 1949)” , Martinus Nijhoff , The Hague, 1975, 130; see also the s tatement by Lodovico Benvenuti (Italy) at the first session of the Consultative Assembly of the Council of Europe, Strasbourg, 8 September 1949, in “Collected Edition of the ‘ Travaux Preparatoires ’ of the European Convention on Human Rights, Volume I”, cited above, 179-80. Compare, for more, Keller, Helen and Heri , Corina (2016), cited above, at 3.

[3] See Keller , Helen and Heri , Corina, cited above, especially 4-5, for an in-depth exploration.