CONCURRING OPINION OF JUDGE K Ū RIS

1. I voted with my colleagues in favour of finding inadmissible the applicant ’ s complaint of a violation of Article 18 of the Convention. Nevertheless, like my colleagues Judges Saj ó , Tsotsoria and Pinto de Albuquerque, I have, to put it mildly, very serious doubts that the standard dictating that the application should be rejected, as established in the Court ’ s case-law, is (still?) a good one.

I

2. More than forty years ago, in Kamma v. the Netherlands (no. 4771/71, Commission ’ s report of 14 July 1974), the European Commission of Human Rights held that Article 18 “does not have an autonomous role” and that it “can only be applied in conjunction with other Articles”. Accordingly, “there may ... be a violation of Article 18 in connection with another Article, although there is no violation of that Article taken alone” (p. 9). For the sake of convenience, I will refer to such “other” Article(s) as to the “main Article(s)”, although this (merely technical) denotation is perhaps not very fortunate, as it implicitly suggests that Article 18 may be somewhat “less important” than, say, Articles 3 or 5, or 6, or 8, or 10, or 11, or 13. I would like to distance myself from such an approach.

3. The Court has accepted the Commission ’ s logic without reservation, word for word (see Oates v. Poland (dec.), no. 35036/97, 11 May 2000). It is therefore consistent with this principled stance on the part of the Court that in applications which prima facie satisfy admissibility criteria and therefore are examined by a judicial formation other than a single judge, alleged breaches of Article 18 are depicted not as “autonomous”, but as intrinsically linked to the violation of some other Article(s) of the Convention or its Protocols, that is, the “main Article(s)”. Also consistent with this stance is the practice whereby, if the Court does not find a violation of the “main” Article, the comp laint of a violation of Article 18 either also gives rise to a finding of no violation, or is not even examined on the merits, being dismissed as unsubstantiated.

4. Cases in which the Court has found a violation of Article 18 can be counted on the fingers of two hands, and still there would be some fingers left. Given the pace at which the fingers have been bent to date, one may predict that the others will remain free for some time yet. Such modest numbers do not mirror the reality of “political justice” in its diverse manifestations – politically inspired arrests, prosecutions, detentions, trials, convictions, confiscations of property, and restrictions of civic action. However, as the Court has stated in Khodorkovskiy v. Russia (no. 5829/04, § 255, 31 May 2011),

“the whole structure of the Convention rests on the general assumption that public authorities in the member States act in good faith.”

5. The presumption of good faith (on the part of the authorities) implies that in complaints under Article 18 (unlike in complaints under virtually all other Articles) the onus probandi is on the applicant:

“Indeed, any public policy or an individual measure may have a ‘ hidden agenda ’ , and the presumption of good faith is rebuttable. However, an applicant alleging that his rights and freedoms were limited for an improper reason must convincingly show that the real aim of the authorities was not the same as that proclaimed (or as can be reasonably inferred from the context). A mere suspicion that the authorities used their powers for some other purpose than those defined in the Convention is not sufficient to prove that Article 18 was breached.” (ibid.)

6. Presumptions can be weak and strong. The presumption of good faith in Article 18 cases appears to be extremely strong . Not only has the burden of proof not been imposed on the respondent Government (as in cases under other Articles) but on the applicant, but in order to convince the Court that there has indeed been a violation of Article 18, the applicant has to present the Court with at least some cast-iron, even diamond proof, as direct as proof can be. The “rebuttable” presumption, thus, can be rebutted only by “irrebuttable” evidence, and this evidence has to be furnished by the applicant. In the Court ’ s case-law this test is referred to as a “ very exacting standard of proof” (emphasis added). In Khodorkovskiy (ibid., § 256), the Court, referring to its earlier case-law, stated:

“When an allegation under Article 18 is made the Court applies a very exacting standard of proof; as a consequence, there are only few cases where the breach of that Convention provision has been found. Thus, in Gusinskiy v. Russia (no. 70276/01, §§ 73–78, ECHR 2004-... (extracts)), the Court accepted that the applicant ’ s liberty was restricted, inter alia , for a purpose other than those mentioned in Article 5. The Court in that case based its findings on an agreement signed between the detainee and a federal minister of the press. It was clear from that agreement that the applicant ’ s detention was applied in order to make him sell his media company to the State. In Cebotari v Moldova (no. 35615/06, §§ 46 et seq., 13 November 2007) the Court found a violation of Article 18 of the Convention in a context where the applicant ’ s arrest was visibly linked to an application pending before the Court. However, such cases remain rare (see, as an opposite example, Sisojeva and Others v. Latvia [GC], no. 60654/00, § 129, ECHR 2007-II). Particularly, the Court notes that there is nothing in the Court ’ s case-law to support the applicant ’ s suggestion that, where a prima facie case of improper motive is established, the burden of proof shifts to the respondent Government. The Court considers that the burden of proof in such a context should rest with the applicant.”

So, the standard of proof imposed on the applicant in Article 18 cases is mountain high. Perhaps some would say that the presumption of good faith has turned almost into an almost uncritical belief in the authorities ’ good faith, which was not shaken even after Khodorkovskiy (cited above) was followed by OAO Neftyanaya Kompaniya Yukos v. Russia (no. 14902/04, 20 September 2011) and Khodorkovskiy and Lebedev v. Russia (nos. 11082/06 and 13772/05, § 899, 25 July 2013). Or was there such a belief from the outset?

But this is hardly a belief. Rather it is a precaution .

7. True, there may be good reasons not to abandon (at least altogether) the aforementioned presumption. In Khodorkovskiy and Lebedev (cited above, § 903), the Court stated:

“even where the appearances speak in favour of the applicant ’ s claim of improper motives, the burden of proof must remain with him or her. [The Court] confirms its position in Khodorkovskiy (no. 1) that the applicant alleging bad faith of the authorities must “convincingly show” that their actions were driven by improper motives. Thus, the standard of proof in such cases is high. Otherwise the Court would have to find violations in every high-profile case where the applicant ’ s status, wealth, reputation, etc. gives rise to a suspicion that the driving force behind his or her prosecution was improper. Such prosecutions as those, for example, at the heart of the case of Streletz, Kessler and Krenz [ v. Germany , nos. 34044/96, 35532/97, 44801/98, ECHR 2001-II] would then become impossible. ... The Court reiterates its dictum in Khodorkovskiy (no. 1) that ‘ high political status does not grant immunity ’ .”

8. The rationalisation cited above is phrased in a more or less absolutist manner. In theory, it leaves some scope for arguing that the authorities, by restricting the applicant ’ s rights, pursued some “other purpose than those defined in the Convention” (see Khodorkovskiy , cited above, § 255), but he or she has to “convincingly show” that the authorities acted in bad faith. Thus, in fact, the applicant ’ s case depends on the Court ’ s ability to be “convinced” by the evidence provided.

Both “faith” and “conviction” are concepts that are not devoid of an element of subjectivity. Consequently, if an applicant has only what the Court, not being “convinced” by him or her, may consider to be mere “contextual evidence” (that is, if there are only “appearances”, no matter how many) that he or she fell victim to “political justice” (no matter how convincing that evidence may be to the general public), there is not much that can be done for the judicial acknowledgment that this was indeed so.

This explains why there have been so few cases in which the Court has found that Article 18 has been breached (see paragraph 11 below). And vice versa : the low number of such cases is strong evidence of the absolutist character of the principle whereby the “rebuttable” (in theory) presumption of good faith is rebuttable with such great difficulty in practice.

9. The assertion that the Court, in the event that the onus in an Article 18 case is imposed on the Government,

“would have to find violations in every high-profile case where the applicant ’ s status, wealth, reputation, etc. gives rise to a suspicion that the driving force behind his or her prosecution was improper” (emphasis added)

is not impeccable. It raises more questions than it provides answers.

First of all, really every? Why every ? The statement that

“[s]uch prosecutions as those, for example, at the heart of the case of Streletz, Kessler and Krenz ... would then become impossible”

is a sheer exaggeration. It amounts to nothing less than an admission by the Court of its impotence in the face of charges that may be fabricated, accusations that may be concocted, speculations that may be groundless. I do not believe that the Court is so helpless or paralysed. Are there really no other means for dismissing from the very outset a bogus conspiracy theory that the applicant ’ s rights or freedoms were restricted for a purpose other than one prescribed by the Convention if the applicant cannot provide the Court with a written or recorded confession by the authorities that they are “after him” for this other purpose (whatever it may be), or at least something like an “agreement” signed by the applicant in the authorities ’ favour while the latter was kept in detention (as, for example, in Gusinskiy v. Russia (no. 72076/01, ECHR 2004-IV))? All in all, a suspicion is only a suspicion; if it is not authoritatively dismissed from the outset as a sham, it can be rejected after a closer reasoned examination. A blank refusal to probe a suspicion that a politically motivated abuse of power has taken place will never dissipate that suspicion. But it can surely increase the suspicion.

And what about “ESK” (this abbreviation of “every schoolboy knows” is borrowed from Richard Dawkins)? What if the “contextual evidence” that an applicant was politically persecuted by the authorities is measured in library stacks? In other words, what if (as phrased in Khodorkovskiy and Lebedev (cited above; see paragraph 7 above)) the “appearances [which] speak in favour of the applicant ’ s claim of improper motives” are so abundant that anyone who wants to see things as they really are would no longer be able to subscribe to the presumption of good faith with respect to that particular Government? Can such “contextual evidence” nevertheless be outweighed by a prudent formalistic judicial reservation? Can and, more importantly, must the Court formally reject such “contextual evidence” on the sole basis that those involved in persecution of a political opponent were not reckless enough to sign an affidavit and hand it to the applicant to be delivered to the Court?

10. All these questions are not about any of the cases already decided by the Court, in which the latter has not found a violation of Article 18. They are about the principle . They are about the standard of proof and the method of reasoning based on precaution. By extension, they are about the relationship between law and manifest reality. If a principle, however reasonable in legal terms, has originated in precaution, it does not necessarily help to narrow the gap between law and real life. It can go in either direction. But there is a great risk that it will go in the direction of widening that gap.

11. Be that as it may, from 2004 (only) until today the Court has found a violation of Article 18, in conjunction with one or more provisions of Article 5, in six cases. All these cases were decided by a Chamber, and none by the Grand Chamber. These cases were (in chronological order): Gusinskiy (cited above); Cebotari v. Moldova (no. 35615/06, 13 November 2007); Tymoshenko v. Ukraine (no. 49872/11, 30 April 2013); Lutsenko v. Ukraine (no. 6492/11, 3 July 2012); Ilgar Mammadov v. Azerbaijan (no. 15172/13, 22 May 2014); and Rasul Jafarov v. Azerbaijan (no. 69981/14, 17 March 2016).

In all these cases the Court based its finding of a violation of Article 18, in conjunction with one or more provisions of Article 5, on evidence which was clearly not “contextual”. Some of these items of evidence are mentioned passim in quotations from the Court ’ s case-law, as cited in this opinion, and I shall not deal with these matters in greater detail. My concern is not the violations of Article 18 that have been found by the Court, but the violations that have not been found , and the alleged violations that have not been examined .

12. It goes without saying that in the Court ’ s history there have been many more applications in which the issue of Article 18 was raised. Nevertheless, the dominant pattern of dealing with such cases so far has been to find the claims under Article 18 inadmissible . As already asserted (see paragraph 8 above), the presumption of good faith is so strong and the requirements for the acceptance of proof are so rigid that applicants have only very seldom and under very exceptional conditions succeeded in passing this test.

13. However, the Court ’ s case-law in cases where the applicants ’ complaints under Article 18 have not been upheld has up until now diverged into four competing patterns. Unquestionably, there can be very different criteria for classification of that case-law and, thus, different typologies. The one provided below makes no claim to be crowned as the queen bee. It is meant to serve only the purpose of this opinion, and nothing more.

II

14. The first pattern of not upholding the applicants ’ complaints under Article 18 is the following. The Court finds no violation of the “main” Article under which the applicant complains. As a rule, applicants complain under not one but several Articles of the Convention and/or its Protocols, and therefore in practice this pattern is present when the Court finds no violation of any of the Articles under which the applicant complained (with the proviso that claims under some Articles may be not examined at all). On the ground that a violation of the “main” Article(s) has not been established, the Court also, after very brief reasoning, finds no violation of Article 18 and explicitly states this in the operative part of the judgment. The respondent Government wins such cases in full .

15. Thus, in Handyside v. the United Kingdom (7 December 1976, Series A no. 24) the Court found no violation of Articles 10 and 14 of the Convention and of Article 1 of Protocol No. 1. It limited its examination on the merits of the alleged violation of Article 18 to a finding that the “restrictions” imposed on the applicant

“concerned aims that were legitimate under ... [Article 10 of the Convention and Article 1 of Protocol No. 1]” ( § 64).

16. More than twenty years later, in G ü ndem v. Turkey (25 May 1998, Reports of Judgments and Decisions 1998 ‑ III), the Court found no violation of Article 3, Article 5 § 1 and Article 8 of the Convention, or of Article 1 of Protocol No. 1. As to the alleged violation of Article 18, the Court based its reasoning on the fact that the Commission (which had examined the case first)

“did not have a sufficient factual basis on which to reach a conclusion that there had been a violation of Articles 3, 5, or 8 of the Convention or of Article 1 of Protocol No. 1”

and that

“[n]or could there be a question under Article 18 of the Convention of restrictions having been applied for improper purposes in regard [the] events [complained about by the applicant]”.

Consequently, the Court concluded that

“there has been no violation of Articles 3, 5 § 1, 8 and 18 of the Convention or of Article 1 of Protocol No. 1” ( §§ 67 and 69).

17. In this context one could also mention Sisojeva and Others [GC] (cited above). In that case the issue of Article 18 was not raised by the applicants in their written submissions, in which they complained under Article 8. It was only at the hearing that the applicants ’ representatives, alongside the representatives of the Russian Government (who intervened on the basis of Article 36 § 1), requested the Court to raise of its own motion the issue of the application of Article 18 and to hold that there had been a violation of that Article ( § 128). In that case the Court held that the matter giving rise to the applicants ’ complaint under Article 8 had been resolved and struck the application out of its list of cases. As to whether the request to invoke Article 18 was allowed at all, the Court left this question aside (and made no mention of it in the operative part of the judgment) because, in the Court ’ s own words,

“[it] sees no evidence that the Latvian authorities abused their powers by applying a restriction authorised by the Convention for a purpose other than that for which it was intended ... [and] sees no reason to raise [this issue] of its own motion” ( § 129).

III

18. Different from this first pattern is the second one , whereby the Court finds a violation of one or more “main” Articles , but no breach of Article 18 itself , even if it is alleged by the applicant that the violation which has actually been found by the Court and the alleged violation of Article 18 are intrinsically linked. In such cases, the operative part of the judgment always includes a point in which it is explicitly stated that there has been no violation of Article 18.

19. This pattern was developed two decades ago and has been employed in several cases decided by the Grand Chamber. Thus, in Akdivar and Others v. Turkey (16 September 1996, Reports 1996-IV), the Court found no violation of Article 18, although it found violations of Article 5 and (former) Article 25 § 1 (as the latter was worded at that time), as well as a violation of Article 1 of Protocol No. 1. Then, in Mente ş and Others v. Turkey (28 November 1997, Reports 1997-VIII) the Court found a violation of Articles 8 and 13, but, again, no violation of Article 18. In Çakıcı v. Turkey [GC] (no. 23657/94, ECHR 1999-IV) a violation of Articles 2, 3, 5 and 13 was found, but no violation of Article 18. Finally, in Tahsin Acar v. Turkey [GC] (no. 26307/95, ECHR 2004-III) the Court found a procedural violation of Article 2, as well as a “failure to comply with Article 38 of the Convention” on the part of the respondent State, but no violation of Article 18 was found.

20. This pattern has been even more common in cases decided by a Chamber. Here are the judgments (in chronological order) in which this pattern has been employed: Sel ç uk and Asker v. Turkey (24 April 1998, Reports 1998-II) – violations of Articles 3, 8 and 13 of the Convention and of Article 1 of Protocol No. 1; Kurt v. Turkey (25 May 1998, Reports 1998 ‑ III) – violations of Articles 3, 5 and 13, as well as a finding “that the respondent State has failed to comply with its obligations under [former] Article 25 § 1” (as it was worded at that time); Tekin v. Turkey (9 June 1998, Reports 1998-IV) – violations of Articles 3 and 13; Ergi v. Turkey (28 July 1998, Reports 1998-IV) – violations of Articles 2 and 13 and (former) Article 25 § 1 (as it was worded at that time); Åž ener v. Turkey (no. 26680/95, 18 July 2000) – violations of Article 6 § 1 and Article 10; Tanl ı v. Turkey (no. 26129/95, ECHR 2001-III) – violations of Articles 2 (both substantive and procedural) and 13; Tepe v. Turkey (no. 27244/95, 9 May 2003) – violations of Articles 2 (procedural) and 13; Y ö yler v. Turkey (no. 26973/95, 24 Jul y 2003) – violation of Articles 3, 8 and 13 of the Convention and of Article 1 of Protocol No. 1; Tekda ÄŸ v. Turkey (no. 27699/95, 15 January 2004) – violations of Article 2 (procedural) and 13, as well as a finding that the respondent Government had “failed to fulfil their obligation under Article 38 § 1 (a) of the Convention”; Ä° pek v. Turkey (no. 25760/94, ECHR 2004-II) – violations of Articles 2 (both substantive and procedural), 3, 5 and 13 (the latter in conjunction with Articles 2, 3 and 5) of the Convention and of Article 1 of Protocol No. 1, as well as a finding that the respondent Government had “failed to fulfil their obligation under Article 38 § 1 (a) of the Convention”; Altun v. Turkey (no. 24561/94, 1 June 2004) – violations of Articles 3, 8 and 13 of the Convention and of Article 1 of Protocol No. 1; Åž irin Y ı lmaz v. Turkey (no. 35875/97, 29 July 2004) – violations of Article 2 (procedural) and 13; Abd ü lsamet Yaman v. Turkey (no. 32446/96, 2 November 2004) – violations of Article 3, Article 5 §§ 3, 4 and 5 and Article 13; Dicle v. Turkey (no. 34685/97, 10 November 2004) – violations of Article 10 and Article 6 § 1; Mente ÅŸ e and Others v. Turkey (no. 36217/97, 18 January 2005) – violations of Articles 2 (procedural) and 13; A ÄŸtaÅŸ and Others v. Turkey (no. 33240/96, 2 February 2006) – a violation of Article 13; A rtun and Others v. Turkey (no. 33239/96, 2 February 2006) – a violation of Article 13; Keser and Others v. Turkey (nos. 33238/96 and 32965/96, 2 February 2006) – a violation of Article 13; Kumru Yılmaz and Others v. Turkey (no. 36211/97, 2 February 2006) – a violation of Article 13; Nesibe Haran v. Turkey (no. 28299/95, 2 February 2006) – a violation of Article 2 (procedural); Öztoprak and Others v. Turkey (no. 33247/96, 2 February 2006) – a violation of Article 13; Åžaylı v. Turkey (no. 33243/96, 2 February 2006) – a violation of Article 13; Aksakal v. Turkey (no. 37850/97, §§ 43-44, 15 February 2007) – a violation of Article 13; Khodorkovskiy (cited above) – violations of Article 3 and Article 5 §§ 1, 3 and 4; OAO Neftyanaya Kompaniya Yukos (cited above) – violations of Articles 6 § § 1 and 3 (b) and of Article 1 of Protocol No. 1; and Khodorkovskiy and Lebedev (cited above) – violations of Article 3, Article 5 § § 3 and 4, Article 6 § 1 (in conjunction with Article 6 § 3 (c) and (d)) and Article 8 and of Article 1 of Protocol No. 1, as well as a finding that the authorities had failed “to respect their obligation under Article 34 of the Convention”.

In all these cases the Court, even if briefly, dealt with the merits of the allegations under Article 18 in relation to one or more “main” Articles and found that, even if the latter had been breached, Article 18 had not, and explicitly stated this in the operative parts of the judgments.

21. Within the second pattern, the Court has used different forms of wording for substantiating the finding of no violation of Article 18 (while finding, in the same judgment, a violation of one or more of the “main” Articles).

For example, in some (mostly earlier) cases the Court was satisfied that a violation of Article 18 had not been established by the Commission, and considered it appropriate not to depart from that conclusion (see, for example, Sel ç uk and Asker , cited above, § 102; Mente ş and Others , cited above, § 98; and Çakıcı , cited above, § 117) .

In other cases the Court used laconic wording (with some variations) in finding that

“no violation of [the] provision [of Article 18] can be established on the basis of the evidence before [the Court]” (see, for example, İ pek , cited above, § 216, and Abd ü lsamet Yaman , cited above, § 91).

Through the years, however, something of a “template” formula has been worked out and has been employed more often than any other:

“The Court ... has already examined this allegation in the light of the evidence submitted to it, and found that it was unsubstantiated. Accordingly, no violation of [the] provision [of Article 18] has been established” (see, for example, Tepe , cited above, § 204; A ğtaş and Others , cited above, § 75; Kumru Yılmaz and Others , cited above, § 88; and Aksakal , cited above, § 59).

In all such cases the explicit reasoning of the Court as to the alleged violation of Article 18 has indeed been limited to only a few sentences (occasionally to one).

22. However, in the more recent judgments adopted in Khodorkovskiy , OAO Neftyanaya Kompaniya Yukos and Khodorkovskiy and Lebedev (all cited above), such reasoning has been much more extensive ( §§ 254 ‑ 261, §§ 663-666 and §§ 897-909 respectively). Moreover, in two of these judgments, namely Khodorkovskiy and Khodorkovskiy and Lebedev , a rather cautious concluding formula has been used: the Court has stated that

“[it] cannot find that Article 18 was breached” ( § 261 and § 909 respectively).

This can be translated as meaning that maybe the breach was there, but the Court “cannot” hold it to be proven. This caution is perfectly understandable, given that it has become increasingly difficult to find an informed “man on the street”, let alone a serious political analyst, who would be quick to believe, especially with the hindsight of well-known ex post developments, that these formal(istic) judicial findings adequately reflect “contextual evidence”, as provided by the applicants, but also by the media and analysts worldwide.

IV

23. The third pattern of not upholding applicants ’ complaints under Article 18 is where the alleged violation is not examined on the merits at all , because the Court, for one reason or another, has decided that there is no need for such examination .

24. This is precisely what happened in Navalnyy and Yashin v. Russia (no. 76204/11, 4 December 2014). In that case, the Court found a violation of Article 3, Article 5 § 1, Article 6 § 1 and Articles 11 and 13, but at the same time it found that it was “not necessary” to examine the complaint under Article 18. This middle-of-the-road solution leaves the parties (and other readers of the judgment) guessing as to whether a violation of Article 18 could have been found had the Court not decided that it was “not necessary to examine” this issue. In other words, while the first ‑ pattern cases are won by the respondent Government in full , their victory in the third-pattern cases is partial and eventually – if the emergence, in the future, of evidence that is more than “contextual” will allow for a “follow-up” case (but so far this has been only a theoretical possibility) – may even be not final . However, this “economic” approach is not limited to claims under Article 18 but has been used in relation to claims under many other Articles too. Such “economy of examination” is not faulty in itself. However, as I have already stated on a different occasion,

“overly laconic reasons for the rejection of ‘ remainders of complaints ’ have become a long ‑ standing practice of the Court, not only in cases where the need for such rejection is self-evident but also in cases where it would merit more explicit consideration. I believe that the present case clearly belongs to the latter category” (see paragraph 2 of my partly dissenting opinion in M.C. and A.C. v. Romania , no. 12060/12, 12 April 2016 (not yet final)).

25. The reasoning as to why this examination was, in the Court ’ s opinion, “not necessary” in Navalnyy and Yashin (cited above) was the following:

“116. The Court has found above that the applicants were arrested, detained and convicted of an administrative offence arbitrarily and that this had the effect of preventing and discouraging them and others from participating in protest rallies and engaging actively in opposition politics (see paragraphs 73–74 above).

117. In view of those findings, the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 18 of the Convention.”

This reasoning was repeated, word by word, in the very recent case of Frumkin v. Russia (no. 74568/12, §§ 172–173, 5 January 2016).

26. I am perplexed at such a conclusion. Stunned.

To wit, a finding that an arbitrary (that is, not merely incidental, but discretionary, wilful, even capricious !) arrest, detention and conviction (that is, not an isolated act, but the whole “chain” of the criminal proceedings!)

“had the effect of preventing and discouraging [the applicants] and others from participating in protest rallies and engaging actively in opposition politics” (emphasis added)

commands nothing less than the most thorough judicial scrutiny of whether such prevention and discouragement of the applicants and others from political activity was not only the effect , but also the purpose of that arbitrary arrest, detention and conviction.

Arrests, detention and conviction are acts by public authorities. When authorities act arbitrarily and, moreover, when they do so not incidentally but are consequential in their arbitrariness , they – unless there is such a coincidence of circumstances as to penetrate deep into the territory of improbability – do so with a purpose .

And purpose is precisely what Article 18 speaks about!

V

27. The fourth and, up until now, last pattern of not upholding applicants ’ complaints under Article 18 is where the alleged violation is not examined on the merits , because the complaint appears to be incompatible ratione materiae with the provisions of the Convention.

28. In the recent case of Navalnyy and Ofitserov v. Russia (nos. 46632/13 and 28671/14, 23 February 2016) the Court found a violation of Article 6 § 1. At the time of writing this opinion, that judgment is not yet in force, pending the examination of a request for referral to the Grand Chamber.

In Navalnyy and Ofitserov (cited above) the related complaint under Article 18 was declared inadmissible ratione materiae , because

“ the provisions of ... Articles [6 and 7], in so far as relevant to the present case, do not contain any express or implied restrictions that may form the subject of the Court ’ s examination under Article 18 of the Convention.”

29. Without going into the merits of that case, and limiting myself to the issue of the admissibility of the Article 18 complaint, I refer to the joint partly dissenting opinion of Judges Nicolaou, Keller and Dedov, in which they disagree with the “majority” as to this declaration of inadmissibility. In their own words,

“The present case is the first in which the Court has been called upon to apply the accessory protection of Article 18 solely in conjunction with Article 6 or 7 of the Convention.” (See paragraph 5.)

According to the authors of the joint partly dissenting opinion,

“In its past case-law, the Court has explicitly permitted the invocation of Article 18 together with Article 5 of the Convention , Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention . However, the Court also seems to have allowed Article 18 to be invoked together with one of these three provisions and other Convention rights, for example Article 6 of the Convention . Furthermore, the drafting history of Article 18 would indicate that its application was not intended to be limited to those provisions of the Convention containing an explicit restriction clause. Instead, as per its ratio conventionis , it applies to limitations on all Convention rights, with the exception of those absolute rights that do not permit limitation and to which it therefore cannot logically apply, for example those under Article 3.” (See paragraph 4; footnotes omitted.)

Consequently, the dissenters conclude:

“Rejecting the complaint as incompatible ratione materiae , as the majority do, flies in the face of the ratio conventionis and the previous case-law concerning Article 18. For this reason, though we do not consider it our place to make a determination about the merits of the applicants ’ complaint in this context, we consider that the Court should have declared the complaint under Article 18 of the Convention admissible.” (See paragraph 7.)

30. There is one element of this opinion that I do not agree with.

I concur, in principle, with the authors of the opinion that the scope of Article 18 should not be limited by, inter alia , a declaration that a complaint is incompatible ratione materiae with the provisions of certain Articles of the Convention and/or its Protocols. I would only add that this applies even more in relation to the Articles which in the case under examination were found to have been violated (in Navalnyy and Ofitserov , Article 6 § 1).

However, I disagree with the authors of the opinion where they equate this declaration of incompatibility ratione materiae to a finding – by a majority in the case of Navalnyy and Ofitserov – that it is “not necessary” to examine the complaint under Article 18. They write:

“Our colleagues considered that, given the findings made under Article 6 § 1 of the Convention, it was not necessary to examine the applicants ’ other complaints under Articles 6 and 7 of the Convention.” (See paragraph 1.)

31. I have shown (see paragraphs 23-26 above) that a finding that there is “no need” to examine a complaint under Article 18 is a recently invented technique (the third pattern) for not upholding applicants ’ complaints under that Article, and is distinct from the other two patterns employed in earlier cases. It is also distinct from a declaration that a complaint is incompatible ratione materiae with the provisions of a particular Article of the Convention or its Protocols. Declaring that a complaint is incompatible ratione materiae with the provisions of a particular Article is both formally and essentially different from concluding that it is “not necessary” to examine it. In the “not necessary to examine” pattern, as employed in Navalnyy and Yashin (cited above), a separate explicit point is devoted to this conclusion in the operative part of the judgment. In the “incompatibility ratione personae ” pattern, however, the declaration of incompatibility is subsumed by the relevant point of the operative part, in which the respective part of the complaint (usually labelled the “remainder” of the application(s)) is declared inadmissible, but Article 18 is not even mentioned. Thus, point 2 in the operative part of the judgment in Navalnyy and Ofitserov (cited above) states that the Court

“[d] eclares , unanimously, the complaints under Articles 6 and 7 of the Convention admissible and, by a majority, the remainder of the applications inadmissible”.

Moreover, the incompatibility of a complaint with the provisions of the Convention ratione materiae (or ratione temporis , ratione loci , and so on) by definition precludes the Court from finding the examination of the complaint “not necessary”. It is not just “not necessary” – it is “not allowed”. It is legally not possible .

32. Notwithstanding this oversight (or slip of the pen, if it is still permissible to speak of a “pen” with respect to a text written in the computer era), I wholeheartedly agree with the dissenters in Navalnyy and Yashin (cited above). The invention of the fourth pattern of not upholding applicants ’ complaints under Article 18 – incompatibility of a complaint ratione materiae with the “main” Article – is most regrettable.

33. But there is one more important difference between the two new patterns which deserves to be mentioned.

I think that I have shown how faulty and unacceptable the third (“not necessary to examine”) pattern is – or at least was in the context of the case of Navalnyy and Yashin (cited above), where it was invented.

However, I cannot say the same about the fourth (“incompatibility”) pattern. Viewed from a broader perspective, it is not, as such, limited to the complaint ’ s incompatibility ratione materiae with certain Article(s) of the Convention or its Protocols. It is beyond any doubt that applications, not excluding those lodged under Article 18, may be incompatible with the provisions of the Convention or its Protocols, say, ratione temporis , or ratione loci , or ratione personae . What is wrong in this fourth pattern is not the “incompatibility” element but that of “ ratione materiae ”.

All the same, this broader version of the incompatibility of complaints under Article 18 ratione temporis etc. with the “main” Article is, so far, but a theoretical exercise. It does not yet seem to have been furnished with illustrations from the Court ’ s case-law.

VI

34. I referred (see paragraph 27 above) to the fourth pattern of not upholding applicants ’ complaints under Article 18 as “up until now, the last” one (see also paragraph 13 above). Now I have to clarify what I meant by this “up until now”.

35. In the present case, we, the Chamber, have coined a fifth pattern – namely, we have declared the applicant ’ s complaint under Article 18 to be manifestly ill-founded (see paragraph 116 of the judgment) and therefore inadmissible (see point 1 of the operative part). This is a very new technique for dealing with these issues in the Court ’ s case-law.

36. As a matter of principle, the technique of declaring a complaint under Article 18 manifestly ill-founded is not fallacious in itself . Applicants often do lodge manifestly ill-founded complaints under various Articles, which must be declared inadmissible under Article 35 § 3 (a). Why should Article 18 be an exception? Therefore, this fifth pattern of rejection of a complaint under Article 18 is legally not impossible and, if one may say so, is “valid”, at least in theory; simply, it has not been employed by the Court until the present case.

37. Nevertheless, up until now, in cases in which a violation of some other (“main”) Article was found (in the present case these “other” Articles are 5 § 1 and 6 § 1), the Court has dealt with such complaints according to the second pattern described above (see paragraphs 18 ‑ 22 above). Concise as it is, the “template” formula (referred to in paragraph 19 above) includes a finding that the complaint under Article 18 is “unsubstantiated”. And when the Court has not used this “template” formula, it has still applied the same logic by explicitly stating that no violation of Article 18 could be established on the basis of the evidence before it (ibid.).

38. Only in very few cases has the Court rejected the applicants ’ arguments as to the alleged violation of Article 18 after conducting a more detailed examination of the evidence before it. These cases (to recapit ulate ) were Khodorkovskiy , OAO Neftyanaya Kompaniya Yukos and Khodorkovskiy and Lebedev (all cited above). One may agree or disagree with the finding of no violation of Article 18 in these cases, but it is indisputable that the Court dealt with the issue under Article 18 and, having applied its “very exacting standard of proof”, decided that there was not enough evidence to support the applicants ’ allegations that Article 18 had been breached. Consequently, the Court was able to find that there had been no violation of Article 18, or (in two cases out of three) at least stated that it could not find that that Article had been breached (see paragraph 22 above).

39. In the present case, the Court also dealt with such evidence quite extensively, even if it was “contextual” (see paragraphs 113–115 of the judgment). But despite the similarity (and the scope) of the reasoning, the “end product” was completely different: instead of finding that Article 18 had not been violated, the Court decided that this part of the application was “manifestly ill-founded” (see paragraph 116 of the judgment).

40. Such a finding may have a boomerang effect. Can the conclusion that the application under Article 18 is “manifestly ill-founded” itself be seen as well-founded?

Firstly, the “potential of convincingness” (and, by extension, legitimacy, as opposed to formal legality) of the rejection of the complaint in question depends, at least to some extent, on the parties ’ and the broader public ’ s opinion as to whether the notion of a “manifestly ill-founded” application also includes applications supported by available factual information which, according to the Court ’ s standard of proof, amounts only to “appearances”. Thus, this conclusion may be received with suspicion by those to whom the factual situation dealt with in this case is “ESK” (if I may use Dawkins ’ abbreviation again, and not for the last time), that is, by those who have enough “contextual evidence” to believe that this evidence deserved to be looked into with closer attention. The existence of such information in this particular case is, of course, only a hypothesis; I do not assert that such “contextual evidence” exists at all. But if it is in place, then what has been declared “manifestly ill-founded” in the formal legal sense distances itself tremendously from what is “manifestly ill-founded” in terms of common sense. If not, then it does not.

Secondly, the conclusion in the present case may be criticised from the point of view of the Court ’ s case-law, in which, (again) up until now, there have been two options: (i) a (relatively) extensive examination of evidence pertaining to the alleged violation of Article 18, leading to a finding of no violation of that Article; and (ii) a laconic examination, leading to the conclusion that the application was “unsubstantiated” or that no violation of Article 18 could be established “on the basis of the evidence before the Court”. Thus, the conclusion in question, at least from the point of view of legal drafting, may be seen as a hybrid in its own right.

41. This second criticism, however, would be superficial. The devil does not hide in this structural technicality. It hides in the fact that at this stage of development of the Court ’ s case-law the Court has to follow the ever tougher standard for the admissibility of complaints under Article 18. Khodorkovskiy , OAO Neftyanaya Kompaniya Yukos and Khodorkovskiy and Lebedev (all cited above) have made the change. There is an irony in that out of these three cases, which have had the strongest bearing on the outcome of the Article 18 complaint, only Khodorkovskiy (cited above) has been cited in the relevant paragraphs (113–115) of the judgment in the present case. On the other hand, it was in that case that the change finally crept in – although even that case had deep roots in cases decided much earlier, notwithstanding the fact that some of them produced a different result and violations of Article 18 were found. As a result, applications which a decade or less ago could have been considered prima facie admissible, but unsubstantiated by evidence other than “contextual” evidence, sooner or later had to be treated as “manifestly ill-founded” (as in the present case, which happened to be the first one given such treatment – but, if the approach does not change, by no means the last), because the Court, equipped with its ever tougher standards of admissibility, knows a priori that a complaint has no prospect of success if it is supported only by “contextual evidence” (“appearances”) – hence the complaint may not even be communicated to the Government. It seems appropriate to admit that this is precisely what happened with the present applicant ’ s complaint under Article 18 in conjunction with Article 6 § 1, which, unlike the complaint under Article 18 in conjunction with Article 5, was not communicated to the Government.

Did it have to be this case where this new pattern of rejecting applications under Article 18 had to come to life? I do not know. But o nce it had become established case-law that “appearances”, or “contextual evidence”, were of no value in supporting an allegation that there had indeed been a violation of Article 18, such a change had to take place. In this regard, the current (fifth) pattern, unlike the third and fourth patterns described above, is a logical development of the Court ’ s case-law. This, however, does not justify the direction in which this case-law has developed.

42. One aspect still should puzzle an attentive student of the Court ’ s case-law. The application in this case was lodged with the Court as far back as 2005. The ones in Khodorkovskiy , OAO Neftyanaya Kompaniya Yukos and Khodorkovskiy and Lebedev (all cited above) were lodged in 2004, 2004 and 2006 and 2005 respectively, at about the same time. It is merely d ue to the wheel of fortune (or, better, misfortune) that those three cases were examined earlier than the present one. What would have been the outcome of the complaint in the present case had it been examined before these three cases? I am just wondering.

VII

43. One could also ask whether the complaint in question, if (as established by the Court) it is ill-founded, is really manifestly ill-founded. What is the added value of this “manifestly”? And what is so manifest about the ill-foundedness of the complaint if the Court had to devote a page and a half of the judgment to establishing such ill-foundedness, whereas (it will be recalled) in the cases belonging to the second pattern the Court needed only a couple of sentences to declare that the complaint was unsubstantiated and to find no violation of Article 18 (see paragraph 21 above)?

These questions address a broader problem. It lies, at least in part, in the determination of the Court to model the wording it uses on the language of the Convention as closely as possible. And the language used in the Convention (Article 35 § 3 (a)) is “manifestly ill-founded”, not simply “ill ‑ founded”. The Court never declares applications “ill-founded” – only “manifestly ill-founded”. It may seem somewhat (?) striking, at least for an “outsider” to the Court, when the Court declares a complaint “manifestly ill ‑ founded” not unanimously , but “by a majority”. Those who (still) believe that words have meanings may infer that the ill-foundedness of an application has been not so “manifest”, because some judges have not voted for its rejection as inadmissible. In fact, such usage is a matter of tradition, which has developed through the decades. It will not change, for better or maybe for worse.

44. Now back to the first of the two hypothetical criticisms mentioned in paragraph 40 above, namely the broader than legal virtue (or maybe imperfection) of the conclusion of “manifestly ill-founded”. Is it really convincing – not in the formal sense characteristic of judicial formulas, but in the sense that an average educated person (someone who does not have even “contextual evidence” available) would attribute to the words “manifestly ill-founded”?

45. For instance, I doubt that many will be convinced by the following argument (see paragraph 114 of the judgment):

“There was nothing in the present case to suggest that the prosecution or judicial authorities themselves showed, either through official or unofficial channels, the existence of any ulterior motives incompatible with the restrictions on the applicant ’ s liberty which are permitted under Article 5 of the Convention.”

I wish this argument had been omitted. Bluntly, it instructs: “when committing a crime, don ’ t leave fingerprints.”

46. Judges Jungwiert, Nu ß berger and Potocki stated in their joint concurring opinion in Tymoshenko (cited above):

“[A] mere suspicion that the authorities used their powers for some other purpose than those defined in the Convention cannot be sufficient to prove that Article 18 was breached. ... [T]he Court rightly applies a very exacting standard of proof ... This requirement must not, however, be such as to render it impossible for the applicant to prove a violation of Article 18. ...

... [T]he wording of Article 18 contains the word ‘ purpose ’ , which necessarily refers to a subjective intention which can be revealed only by the person or persons holding it, unless it is – accidentally – documented in some way ... Generally, knowledge about what the Court calls a ‘ hidden agenda ’ is within the sphere of the authorities and is thus not accessible to an applicant . It is therefore necessary to accept evidence of the authorities ’ improper motives which relies on inferences drawn from the concrete circumstances and the context of the case. Otherwise the protection granted by Article 18 would be ineffective in practice.

... [W]hen relying on the circumstances and the context of a case the Court must nevertheless not apply double standards and accept more easily a violation of Article 18 in conjunction with Article 5 or 6 in the case of applicants holding specific prominent positions in society. ...” (emphasis added)

And further:

“[T]he Court has held that the burden of proof should rest with the applicant even where a prima facie case of improper motive is established ... Nevertheless, that cannot mean that in cases where the authorities cannot advance any ‘ proper motive ’ it would not be possible to consider an ‘ improper motive ’ to be proven.”

I fully agree.

47. Regrettably, what has been cited above is a concurring opinion. And a concurring opinion (like any separate opinion of a judge) is, by definition, an alternative to the majority ’ s reasoning in a case. More than that: the considerations cited above are not in line not only with the majority ’ s position in that case, but also with the much bigger volume of the Court ’ s established case-law on Article 18, including Khodorkovskiy , OAO Neftyanaya Kompaniya Yukos and Khodorkovskiy and Lebedev (all cited above), just as my concurring opinion in the present case is calling into question not so much the Chamber ’ s reasoning as the Court ’ s established case-law, which inevitably has led the Chamber to declare the applicant ’ s complaint under Article 18 “manifestly-ill founded”.

48. The Court ’ s extremely rigid admissibility test in Article 18 cases calls for reconsideration. The “very exacting standard of proof” does not recognise mere “appearances”. It does not distinguish between “appearances” that are only speculation and “appearances” that are “ESK”.

But please compare another test – the so-called Duck test, which says: “If it walks like a duck and swims like a duck and quacks like a duck, we call that bird a duck.”

The Duck test is all about “appearances”! Obviously, that bird does not have to sign a document saying “I am a duck.”

A rhetorical question: would such a duck pass our admissibility test in Article 18 cases?

I guess not.

This is a non-legalistic hint as to the direction in which the admissibility test in Article 18 cases should be reconsidered, with a view to bringing the law of the Convention closer to the reality of political life.

49. It is important to stress (I have to repeat this time and again) that I do not have in mind this particular case . I have in mind the principle . The method . In this case it is far from obvious that the restriction of the applicant ’ s rights pursued another purpose than those defined in the Convention .

50. But there will be other cases where something that is “ESK” will not pass our extremely rigid admissibility test.

51. After all, Tahsin Acar (cited above), the last Grand Chamber (!) case dealing specifically with an Article 18 issue, was decided twelve years ago – in a manner too concise to satisfy today ’ s challenges of “political justice”.

It really is time for reconsideration.

[1] Navalnyy and Ofitserov v. Russia, nos. 46632/13 and 28671/14 , § 117, 23 February 2016 , and Frumkin v. Russia , no. 74568/12 , § 173, ECHR 2016.

[2] There is no obvious reason why there should be a limitation on which A rticles can be applied together with Article 18. Article s 5 and 6 are interrelated and have important similarities for the purposes of Article 18. See the dissent ing opinion in Navalnyy and Ofitserov v. Russia , § 6 : “ Article 6 of the Convention, like Article 5, does not enshrine an absolute right, and though neither provision textually provides for restrictions in a separate second paragraph analogous to those contained in Articles 8-11 of the Convention, limitations are nonetheless possibl e. There is therefore no a priori reason why Article 18 should apply only in conjunction with Article 5 and not with Article 6.”

[3] Khodorkovskiy and Lebedev v. Russia , nos. 11082/06 and 13772/05, § 905, 25 July 2013.

[4] See Helen Keller & Corina Heri, “Selective Criminal Proceedings and Article 18 ECHR: The European Court of Human Rights’ Untapped Potential to Protect Democracy”, Part II.

[5] Khodorkovskiy v. Russia , no. 5829/04 , § 255, 31 May 2011.

[6] See Keller & Heri, supra note 4, Part I (B).

[7] Gusinskiy v. Russia , no. 70276/01, ECHR 2004 ‑ IV.

[8] Lutsenko v. Ukraine , no. 6492/11 , 3 July 2012 .