Article 18 of the European Convention on Human Rights is a rather precise, albeit often overlooked, stipulation. It states:
The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.
What this essentially means, in plain English and with a healthy dose of cynicism, is that if a state decides to clip your wings—to curtail a right or freedom guaranteed by the Convention—they can't just do it for any old reason they conjure up. The justification they offer must be the only reason. There’s no room for implied limitations, no shadowy ulterior motives allowed. Each restriction must be explicitly stated and serve a demonstrably clear purpose. According to Gomien, this Article is only relevant when one of the core, substantive rights laid out in the ECHR is involved.[2] It's about keeping the state honest, or at least, formally honest.
When you look at other major human rights documents, this provision is rather singular. The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights lack such a specific clause. However, the American Convention on Human Rights offers a similar sentiment in its Article 30:
The restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in accordance with the laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established.
It’s a subtle distinction, perhaps, but Article 18 of the ECHR is more about the purpose behind the restriction, demanding that it aligns precisely with the stated justification.
Application
Now, Article 18 doesn't operate in a vacuum. It’s not a standalone weapon. It must be wielded in conjunction with another Article of the ECHR, even if that other Article hasn't been violated on its own. The Court articulated this in Gusinskiy v Russia, stating:[3]
Article 18 of the Convention does not have an autonomous role. It can only be applied in conjunction with other Articles of the Convention. There may, however, be a violation of Article 18 in connection with another Article, although there is no violation of that Article taken alone.
Think of it as a lens through which other alleged violations are viewed. It's designed to sniff out those sneaky, hidden agendas—the "ulterior motives" for clamping down on rights.[4] It’s most often trotted out by individuals who claim the state is using restrictions to muzzle their political dissent or prevent them from engaging in the political arena.[5]
The Court has identified four scenarios where Article 18 might come into play:[6]
- When a specific right's limitation clause clearly defines its purpose.
- When certain Convention Articles explicitly carve out specific areas or individuals from protection.
- When general restrictions are applied under Articles like 15, 16, and 17. This, of course, doesn't apply to rights that are considered non-derogable—those you can't suspend, no matter how dire the circumstances.[7]
- And finally, when inherent limitations, recognized through established case law, are involved.
The burden of proof, as you might expect, falls squarely on the applicant. They have to demonstrate, convincingly, that the state has abused its power or acted in bad faith.[8] This is no small feat. The Court operates under a presumption that authorities are acting honorably. Consequently, despite thousands of cases touching upon Article 18, only a handful—four, to be precise—have resulted in a declared violation by the European Court of Human Rights.[9] This difficulty is compounded by the Court's tendency to prioritize addressing the primary ECHR violation rather than delving deeply into Article 18.[10] Some scholars, like Beddard, suggest that the Court's broad interpretations of what constitutes a legitimate interest, coupled with the doctrine of the margin of appreciation, further complicate its application.[11][12]
A finding of an Article 18 violation doesn't automatically trigger a specific, pre-ordained consequence. However, like any ECHR violation, Article 46 mandates that the offending State must take steps to rectify the situation and restore the individual's rights.
Successful Claims
It’s rare, but not impossible, for Article 18 to be successfully invoked. These cases are often quite telling.
Lutsenko v Ukraine
In the case of Lutsenko, Ukraine’s former minister of internal affairs, the applicant argued that his arrest and detention were not due to the accusations against him, but rather because he had publicly maintained his innocence. The European Court of Human Rights agreed, finding that Ukraine had violated not only Article 5 but also Article 18.[13] Ukraine eventually pardoned Lutsenko and released him on April 7, 2013.[14] It seems honesty, even when inconvenient, can sometimes prevail.
Gusinskiy v Russia
This case involved Gusinskiy, who claimed the Russian state had coerced him into selling his media empire to a state-owned oil company (Gazprom) under duress, while he was imprisoned, in exchange for dropping charges. The Court found violations of both Article 5(1)(c) and Article 18, noting that "it was not the purpose of such public law matters as criminal proceedings and detention on remand to be used as part of commercial bargaining strategies".[15] A rather stark reminder that the justice system isn't a marketplace.
Tymoshenko v Ukraine
Former Ukrainian Prime Minister Yulia Tymoshenko alleged her arrest was politically motivated.[16] Following the European Court of Human Rights' finding of an Article 18 breach, Tymoshenko and her supporters seized upon it to declare her a 'political prisoner'.[17] The Court's spokesperson, Roderick Liddell, felt compelled to clarify that the Court had found her pre-trial detention unnecessary and based on grounds outside Article 5—specifically, a judge detaining her for showing disrespect during a hearing—rather than agreeing with the political motivation claim.[18] Tymoshenko was eventually released on February 22, 2014.[19] Sometimes, the nuance is lost in translation, or perhaps, in political expediency.
Cebotari v Moldova
This case dealt with wrongful pre-trial detention.[20] The Court determined that Cebotari’s detention was arbitrary, and thus a violation of Article 5 ECHR, because it lacked "reasonable suspicion"—the objective basis to believe the person may have committed an offense.[21] Instead, the detention was used as leverage to obstruct other legal proceedings Cebotari had initiated before the European Court of Human Rights.[22] A rather transparent attempt to silence a complainant.
Ilgar Mammadov v Azerbaijan
Here, the applicant's liberty was restricted not for the stated reason of bringing him before legal authorities on suspicion of a crime, but rather for his critical blog posts concerning the Ismayilli protests.[23] Despite the prosecution not directly citing the blog entries, the accusations surfaced shortly after his post, and he was summoned for questioning the same day. The Court found no objective information to justify his arrest at the time, suggesting the real purpose was to punish him for criticizing the government and disseminating information it sought to suppress.[24] This clearly demonstrated a restriction of liberty for purposes other than the officially declared ones.
Unsuccessful Claims
Many claims under Article 18 falter, often because the evidence simply isn't strong enough to overcome the presumption of good faith.
Khodorkovskiy and Lebedev v Russia
This case involved Mikhail Khodorkovsky and Platon Lebedev, who alleged their prosecution was politically motivated, thus breaching Article 18.[25] They also claimed violations of Articles 3 and 5 of the ECHR. While the Court did find several violations regarding Khodorkovsky's rights—including conditions of detention, apprehension, length of detention, and procedural flaws[26]—it stopped short of declaring an Article 18 violation. The Court acknowledged the condemnation of the Russian government's actions but stated there was insufficient "incontestable evidence" of political motivation.[27] The Court famously remarked:
"[T]he whole structure of the Convention rests on the general assumption that public authorities in the member States act in good faith. That assumption is rebuttable in theory, but it is difficult to overcome in practice: the 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). Thus the Court has to apply a very exacting standard of proof to such allegations".[28]
Khodorkovsky's legal team considered the finding of other human rights violations a significant victory, given the difficulty in proving bad faith motives.[29]
Kamma v The Netherlands
Kamma was detained on remand for alleged extortion, which was permissible under Article 5(1)(c).[30] However, the police used this period to investigate him for murder. While Dutch law would have allowed detention for murder suspicion anyway, the wrong procedure was followed. The European Commission of Human Rights (now defunct) found no Convention breach, implicitly suggesting that the procedural misstep didn't constitute an Article 18 violation in this context.
No Necessity to Decide the Issue
In a significant number of cases, the Court simply decides that Article 18 doesn't present a separate issue to be ruled upon.[31] This usually happens in a few predictable scenarios:[32]
- If the Court finds no violation of the other Convention right being discussed, then the Article 18 claim is deemed unsubstantiated.
- If a violation of another Convention right is found, the Court may consider the Article 18 argument effectively 'absorbed' into that finding, making a separate analysis redundant.
- If the Court determines that the restriction's purpose was legitimate under the specific limitation clause of the invoked Article, further examination under Article 18 becomes unnecessary.
- Conversely, if the Court finds the restricting measure's purpose to be illegitimate under the relevant limitation clause, it also deems further Article 18 analysis unnecessary.
Handyside v United Kingdom
This case is more famous for expanding the scope of freedom of expression, but Article 18 was indeed argued.[33] The applicant claimed that seizing The Little Red Schoolbook in the UK was intended to stifle modern teaching methods, not just to protect public morals as stated.[34] The Commission focused its decision on Article 10(2), considering the state's motivations within that framework. While they did state that no evidence of illegitimate motives beyond those permitted by Article 10(2) was presented, the Article 18 claim didn't lead to a distinct finding.
Bozano v France
Bozano alleged a breach of Article 5 due to his deportation from France to Switzerland, which resulted in his deprivation of liberty.[35] The Commission found the deportation itself unlawful because a judicial order had prohibited it. However, it made no explicit ruling under Article 18, merely stating that the detention didn't fall under the specific provision for detention pending deportation (Article 5(1)(f)).
United Communist Party of Turkey v Turkey
The dissolution of the United Communist Party of Turkey by the Constitutional Court of Turkey led to a complaint that included an alleged breach of Article 18.[36] Given that the Commission found a violation of Article 11 (freedom of assembly and association), it deemed it unnecessary to address the Article 18 claim separately.
Essentially, Article 18 acts as a safeguard against the perversion of power, a reminder that even when rights can be restricted, the stated reasons for those restrictions must be the actual reasons. It’s a subtle but crucial aspect of maintaining the integrity of human rights protections. You might think it's just legalese, but sometimes, the devil—or the divine, depending on your perspective—is in the details. And in this case, the detail is purpose.