JOINT PARTLY DISSENTING OPINION OF JUDGES Nicolaou, Keller and Dedov

1. For the reasons set out in paragraphs 102–21 of the present judgment, we are in full agreement with the majority of our colleagues that there has been a violation of Article 6 of the Convention in this case. We also voted with the majority as regards Article 7 of the Convention. However, we are unable to agree with our colleagues ’ conclusion that the applicants ’ complaint under Article 18 of the Convention is inadmissible. 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. They were not, however, content to follow the same approach on Article 18 of the Convention, choosing instead to dismiss that complaint as inadmissible. We respectfully disagree.

2. First, we consider that the majority ’ s approach underestimates the significance of Article 18 of the Convention. That provision states simply that “[t]he restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed”. However, the preparatory work on the provision shows that it was drafted as a defence against abusive limitations of Convention rights and freedoms and thus to prevent the resurgence of undemocratic regimes in Europe. Article 18 of the Convention was intended to provide Europe with the new approach needed in the “battle against totalitarianism”, premised on the understanding that States could always and would always find excuses or reasons to limit, restrict, and ultimately hollow out individual rights and freedoms: the public interest in “morality, order, public security and above all democratic rights” can all be abused for this purpose [5] . Thus, an early version of the provision, proposed by the Legal Committee to the Consultative Assembly, proscribed “any restriction on a guaranteed freedom for motives based, not on the common good or general interest, but on reasons of state” [6] . This version of Article 18 of the Convention was part of the universal limitations clause that was, at an early stage of the Convention ’ s drafting, introduced to apply to all Convention rights and freedoms [7] .

3. As ultimately codified in the Convention, Article 18 was intended to go beyond the content of the rights and freedoms in the Convention to protect individuals from limitations of their rights that run counter to the spirit of the Convention, including politically motivated prosecutions. This application of the provision is also reflected in the Court ’ s practice, though findings of a violation of Article 18 are rather rare, given the exacting standard of proof applied as a result of the presumption that States comply with their Convention obligations in good faith [8] . The Court has nonetheless found a number of violations of Article 18 of the Convention . One example is the Court ’ s 2012 Lutsenko v. Ukraine judgment, where it found that the criminal prosecution of the applicant had not only been initiated in order to bring him to justice for a suspected criminal offence, but also “for other reasons”, inter alia to punish him for asserting his innocence and going to the media in order to contest the allegations made against him [9] . Another example is the 2014 Ilgar Mammadov v. Azerbaijan case. There, the applicant was called in for police questioning on the day after posting a blog entry providing information about riots which the authorities had wanted to keep from the public. Criminal proceedings were then begun against him. Given the absence of “objective information giving rise to a bona fide suspicion against the applicant” [10] , the Court considered it sufficiently proven 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” [11] . There are also several other examples of judgments in which the Court applied Article 18 of the Convention to politically motivated proceedings [12] . While rare, the application of the provision to such proceedings is nonetheless confirmed by the Court ’ s case-law.

4. Secondly, we consider that the majority limit the scope of application of Article 18 of the Convention without necessity or justification. Of course, we note that Article 18 cannot be invoked to combat abuse of power in every possible form. The Court – and indeed the text of Article 18 itself – makes it clear that the provision enshrines an accessory right which must be invoked together with another Article of the Convention [13] . However, it is important to note that this other Article need not have been violated. The question at issue in the present case is whether Article 18 can be invoked together with any Convention right, or only with those that explicitly provide for justified restrictions. In its past case-law, the Court has explicitly permitted the invocation of Article 18 together with Article 5 of the Convention [14] , Article 8 of the Convention [15] and Article 1 of Protocol No. 1 to the Convention [16] . 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 [17] . 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.

5. 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. The majority have resolved the previously unanswered question as to the possibility of such a combination by finding that it is not possible to invoke Article 18 solely in conjunction with these provisions, which “inasmuch 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” (see paragraph 129 of the judgment). Given the textually broad nature of Article 18 of the Convention, the majority ’ s finding would, at the very least, have merited an explanation.

6. Focusing on Article 6 of the Convention, it is undeniable that this right permits limitations: the provision has inherent restrictions according to both its very wording and the Court ’ s case-law [18] . 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 possible [19] . There is therefore no a priori reason why Article 18 should apply only in conjunction with Article 5 and not with Article 6.

7. The relevance of Article 18 of the Convention is particularly significant when examining the case of the first applicant. The criminal proceedings brought against him were not simply unfair and thus in violation of Article 6 § 1; there is also an arguable claim to the effect that the proceedings contained an abusive element. The domestic criminal proceedings at issue subjected a government-critical, prominent and politically active person to criminal prosecution in a manner that the majority in this case found to have “ arbitrarily and unforeseeably construed [ the domestic law] to the detriment of the applicants, leading to a manifestly unreasonable outcome of the trial ” (see paragraph 115 of the judgment). The effect of such a distortion of the law – the singling out of dissidents in order to silence them by means of criminal proceedings – is precisely the sort of abuse from which Article 18 is intended to provide protection. This is a separate issue from the complaint under Article 6 § 1, and it is an issue regarding which the applicants raised an arguable claim in Strasbourg. The Court was therefore under a duty to examine the allegation made. 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.

[1] 1. Rectified on 24 August 2016: the foll owing text was added “ m inus the amount of the fine the applicants had been made to pay in the criminal proceedings (each RUB 500,000, or approximately EUR 5,800 according to the exchange rate applicable on the date of the judgment) .

[2] 2. Rectified on 24 August 2016: the text was “ EUR 48,053 and EUR 22,893 ”.

[3] 1. Rectified on 24 August 2016: the text was “ EUR 48,053 (forty ‑ eight thousand and fifty ‑ three euros) ”.

[4] 2. Rectified on 24 August 2016: the text was “ EUR 22,893 (twenty-two thousand eight hundred and ninety ‑ three euros) ”.

[5] 1. Statement of 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 Préparatoires” of the European Convention on Human Rights , Vol. I (Martinus Nijhoff, The Hague 1975), pp. 179–180.

[6] 2. Collected Edition of the “Travaux Préparatoires” , op. cit. , Vol. I: Preparatory Commission of the Council of Europe; Committee of Ministers, Consultative Assembly, 11 May–8 September 1949, p. 200.

[7] 3. Ibid.

[8] 4. Lutsenko v. Ukraine , no. 6492/11, §§ 106–07, 3 July 2012.

[9] 5. Lutsenko , cited above, §§ 106-09.

[10] 6. Ilgar Mammadov v. Azerbaijan , no. 15172/13, § 142 , 22 May 2014 .

[11] 7. Ilgar Mammadov , cited above, § 143.

[12] 8. Compare Khodorkovskiy and Lebedev v. Russia , nos. 11082/06 and 13772/05, 25 July 2013; Cebotari v. Moldova, no. 35615/06, 13 November 2007; Gusinskiy v. Russia , no. 70276/01, ECHR 2004-IV; and Tymoshenko v. Ukraine , no. 49872/11, 30 April 2013.

[13] 9. See, inter alia , Gusinskiy , cited above, § 73, and Ilgar Mammadov , cited above, § 137.

[14] 10. Ilgar Mammadov , cited above, §§ 137-44; Tymoshenko , cited above, §§ 294–301; and Lutsenko , cited above, §§ 104-10.

[15] 11. Handyside v. the United Kingdom , 7 December 1976, § 64, Series A no. 24.

[16] 12. OAO Neftyanaya Kompaniya Yukos v. Russia , no. 14902/04, §§ 659-66, 20 September 2011.

[17] 13. Compare Khodorkovskiy and Lebedev , cited above, which is rather vague on this point.

[18] 14. Van Mechelen and Others v. the Netherlands , 23 April 1997, §§ 54 and 58, Reports of Judgments and Decisions 1997-III; Doorson v. the Netherlands , 26 March 1996, § 72, Reports 1996 ‑ II; Deweer v. Belgium , 27 February 1980, § 49, Series A no. 35; Kart v. Turkey [GC], no. 8917/05, § 67, ECHR 2009 (extracts); and Guérin v. France , 29 July 1998, § 37, Reports 1998 ‑ V.

[19] 15. Only Articles 2, 3, 4 § 1 and 7 of the Convention are absolute in the sense of Article 15 of the Convention, meaning that they do not permit derogation in times of emergency. Furthermore, while an interference with the right guaranteed under Article 3 of the Convention cannot be justified, it is indeed possible to justify interference with Article 6 of the Convention.