PARTLY DISSENTING OPINION OF JUDGE KELLER

1. I voted with the majority concerning the violation of Articles 5 § 1 and 11 of the Convention found in the present judgment, but I must respectfully disagree with my colleagues regarding their conclusion under Article 18 of the Convention that there is no need to examine the relevant complaint (see paragraph 74 of the majority judgment).

2. In my opinion, there can be no doubt about the fact that this case raises a separate issue under Article 18. In fact, the circumstances before the Court here represent a paradigmatic example of such an issue. Article 18 was drafted in order to allow the Court to address improper limitations of Convention rights by the domestic authorities, including restrictions of rights that are allegedly applied for legitimate reasons but that in fact aim to silence dissidents (see Rasul Jafarov v. Azerbaijan , no. 69981/14, §§ 125 and 156, 17 March 2016). While I agree with my colleagues that the applicant has suffered a violation of his rights under Article 5 § 1 of the Convention, as he was unlawfully deprived of his liberty, and of Article 11 of the Convention, as that deprivation of liberty prevented him from exercising his right to freedom of assembly, these findings do not suffice to address the fact that the State instrumentalised the law in order to target and silence a dissident, a circumstance which falls squarely within the ambit of Article 18.

3. While Article 18 is, by virtue of its text, an accessory provision (see Gusinskiy v. Russia , no. 70276/01, § 73, ECHR 2004-IV), this cannot be taken to mean that the provision need not be examined where the Court has found a violation of the right or freedom in connection with which it is invoked. Like Article 14 of the Convention, another accessory provision, Article 18 must be understood as protecting a legal interest separate from that protected by the other rights and freedoms enshrined in the Convention. Preventing improper limitations of rights as a legal interest is separate from and additional to protecting those rights themselves, in the same way as preventing discriminatory limitations of rights as a legal interest is separate from and additional to protecting those rights themselves. Any other conclusion would deprive Article 18 of a reasonable scope of application [1] .

4. Indeed, Article 18 is intended to allow the Court to address 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. The drafters of the Convention knew that State intervention in the sphere of Convention rights could potentially entail the abuse of fundamental rights and freedoms for “reasons of State” or in order to safeguard the ruling regime against oppositional actors [2] . The provision was accordingly designed to allow the Court to address the improper limitation of rights or, in other words, the illegitimate restriction of Convention rights through “pseudo-legitimate means” [3] .

5. In applying Article 18, the Court has found a violation of that provision where an applicant’s liberty was restricted “not for the purpose of bringing her before a competent legal authority on reasonable suspicion of having committed an offence, but for other reasons” (see Tymoshenko v. Ukraine , no. 49872/11, § 300, 30 April 2013). In 2014 it found a violation of Article 18 in the context of criminal proceedings against an Azerbaijani blogger and opposition politician, on the grounds that “the actual purpose of the impugned measures was to silence or punish the applicant for criticising the Government” (see Ilgar Mammadov v. Azerbaijan , no. 15172/13, §§ 142-43, 22 May 2014). In 2016 the Court similarly found a violation of Article 18 in the criminal proceedings instituted against an Azerbaijani human rights advocate, where the “the actual purpose of the impugned measures was to silence and punish the applicant for his activities” (see Rasul Jafarov , cited above, §§ 125 and 156).

6. The facts of the present case thus fit squarely with the Court’s past case-law under Article 18, which addresses the silencing of dissidents through pseudo-legitimate means. The facts indicate that the applicant in the present case was singled out at Sheremetyevo airport to prevent him, as a prominent opposition member, from attending a demonstration at the EU ‑ Russia summit in Samara. The fact that the Court has found that his deprivation of liberty did not have a legitimate purpose as required under Article 5 § 1 of the Convention, and that the restriction of his freedom of assembly under Article 11 of the Convention lacked a legal basis, does not address the fact that he was singled out by the authorities, who made improper use of the relevant legal machinery with the intention of silencing a dissident.

7. Certainly, the Court has not found many violations of Article 18 in the past. This is due largely to the accessory nature of the provision and to the high standard of proof required under it, which has rightly been criticised by some of my colleagues (see, inter alia , Tchankotadze v. Georgia , no. 15256/05, 21 June 2016, joint concurring opinion of Judges Sajó, Tsotsoria and Pinto de Albuquerque, §§ 7-10, and, in the same judgment, the concurring opinion of Judge Kūris) [4] . On occasion, the Court has interpreted that standard of proof in an almost impossibly strict manner, requiring applicants to provide evidence to rebut the presumption that the State authorities acted in good faith, in order to prove that the criminal proceedings against them did not have a “healthy core” (see Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, §§ 906 and 908-09, 25 July 2013).

8. Although it seems evident in this case that the applicant was deprived of his liberty for the sole purpose of preventing him from exercising his freedom of assembly, the present separate opinion will not engage further with issues of proof and the merits of the applicant’s Article 18 complaint. For present purposes it suffices to note that the Court’s jurisprudence has begun to move away from the inordinately high standard of proof occasionally required under Article 18 in the past (see Ilgar Mammadov v. Azerbaijan , no. 15172/13, §§ 142-43, 22 May 2014, and Rasul Jafarov , cited above, §§ 125 and 156) and that, where the Court finds that an applicant’s deprivation of liberty was not based on a “reasonable suspicion” for the purposes of Article 5 § 1 (c), it considers the presumption of good faith on the part of the State to be rebutted and examines the merits of the complaint, namely whether there is “proof that the authorities’ actions were actually driven by improper reasons” (compare Rasul Jafarov , cited above, §§ 156-57).

9. Given the above, and whatever the outcome of its examination of Article 18 on the merits might have been, I cannot agree with the Court’s decision to find that the present case raises no separate issue under that provision. In the past, the Court has held that “in view of the scarcity of the case-law under that Convention provision, in each new case where allegations of improper motives are made the Court must show particular diligence” (see Khodorkovskiy and Lebedev , cited above, § 898). That diligence is missing here. Indeed, the Court’s failure to examine complaints under Article 18 on the merits not only fails to do justice to the victims of targeted criminal proceedings, but it also reinforces the relegation of Article 18 to an insignificant role in which it is not being used for its intended purpose.

[1] Keller, Helen and Heri, Corina, “Selective Criminal Proceedings and Article 18 of the European Convention on Human Rights’ Untapped Potential to Protect Democracy”, 36(1 ‑ 6) Human Rights Law Journal (2016), 1-10, at 8, with further references.

[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.

[3] Statement 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 on this topic, Keller, Helen and Heri, Corina (2016), cited above, at 3.

[4] Compare the discussion in Keller, Helen and Heri, Corina (2016), cited above.