JOINT CONCURRING OPINION OF JUDGES SAJÓ, TSOTSORIA AND PINTO DE ALBUQUERQUE

1. For technical reasons and as a matter of judicial respect for the case ‑ law we voted to find the applicant ’ s Article 18 complaints inadmissible. However, like many colleagues in other cases, we are of the view that it is time to revisit the prohibitive standards of our Article 18 case ‑ law.

2. In our analysis of the alleged Article 18 violations we should first consider some technical aspects to the case that were not apparent in the examination of the other violations.

I. The temporal scope of the application (Article 5)

3. The complaints concerning the period of detention from the applicant ’ s initial arrest until 16 September 2004 were declared inadmissible because the applicant filed the claim more than six months after this period of detention. As such the Court did not need to consider whether there had been a violation of Article 5 § 1 (c) on account of the lack of “reasonable suspicion” as grounds for arresting and detaining the applicant in the first instance. However, there were incomprehensible elements of the proceedings during this period that raised questions about the legitimacy of the applicant ’ s prolonged detention and the domestic court judgments. We should consider the first period of detention in order to assess the Article 18 claim because it is in respect of that period that we can examine whether the motive was legitimate. Article 18 can be applied together with another Article even if there has been no violation of the main Article (see Gusinskiy v. Russia , no. 70276/01, § 73, ECHR 2004-IV). The claim ’ s inadmissibility for the purposes of an Article 5 violation does not mean that the Court should ignore the facts from this period when considering an alleged Article 18 violation based on the entirety of the circumstances of the case.

II. The material scope of the application (complaints under Article 6 taken in conjunction with Article 18)

4. Although the applicant complained of a violation of Article 6 taken in conjunction with Article 18, that complaint was not communicated, in line with the case-law that was deemed to be applicable at the time of communication. This unfortunate shortcoming precluded the Court from considering this matter.

5. We should not ignore the possibility of such a violation. The Court, in Navalnyy and Frumkin , did not proceed to determine the merits of the Article 18 claim having found a violation of Article 6 [1] . This should not mean that the Court cannot apply Article 18 in conjunction with Article 6 [2] . The judgments of the domestic courts have been found to violate Article 6 § 1 and this should in certain circumstances raise issues of abuse. After all, since the trial of Socrates, “political justice” has been a most notable form of abuse of justice by the powers-that-be.

6. In the present case there is no plausible explanation that suggests a bona fide error. We do not know why the domestic courts refused to respond to the arguments posited by the applicant. This silence demands an explanation. The shortcomings that constituted an Article 6 violation also raise questions about why such shortcomings existed. Article 18 allows for claims arising from these questions. As such the Article 6 claim bears consideration under Article 18.

III. Standard of proof for Article 18

7. Besides the technical difficulties which made a genuine analysis of the issue practically impossible, we were confronted with a more fundamental problem. At present the standard of proof for Article 18 violations is prohibitively high. The State is presumed to be operating in good faith [3] . This presumption demands a standard of proof even higher than “beyond reasonable doubt”, with no burden shifting even after the applicant makes a prima facie showing [4] . The Court requires that the applicant must “convincingly show that the real aim of the authorities was not the same as that proclaimed”; a “mere suspicion” is not enough [5] . We must insist on a review of the current standard. While we have little reason to doubt the presumption of good faith of a State Party to the Convention, that presumption, as it is understood currently, imposes such a high standard of proof that the task of proving a violation is practically impossible and contrary to the spirit of the safeguards provided by Article 18 [6] . Where there are incomprehensible elements in the detention or conviction in question the current standard makes it practically impossible for the applicant to prove his or her case. If the Court itself cannot ascertain the domestic courts ’ reasons for a certain act it would be impossibly difficult to demand that the applicant do so in order to satisfy the standard of proof. There will seldom be written agreements outlining the true purpose of the detention [7] or explicit statements to the effect that the applicant was detained for another reason [8] . This standard results in a practically impossible burden of proof for Article 18 violations.

8. It would be more consistent with the spirit of Article 18 to allow a prima facie showing and burden shifting. If the applicant can make a prima facie showing that there are elements of the detention or judgment that are incomprehensible, flagrantly in breach of the Convention or arbitrary and apparently related to political aims or impermissible private ambitions (for example extortion for private gain), then the burden should shift to the Government to prove that their reasons were legitimate. The position of international impartial observers might be of great relevance here.

9. In the present case we should have considered the facts and assessed the merits of the case under Article 18. However, we were prevented from doing so as we were bound by the prohibitive standards of the case-law.

10. We call upon our fellow judges to reconsider this matter at the earliest possible opportunity.