The new doctrine on misuse of power under Article 18 ECHR: Is it about the system of contre-pouvoirs within the State after all?
| DOI | 10.1177/0924051920923606 |
| Date | 01 June 2020 |
| Author | Aikaterini Tsampi |
| Published date | 01 June 2020 |
| Subject Matter | Articles |
Article
The new doctrine on misuse
of power under Article
18 ECHR: Is it about the
system of contre-pouvoirs
within the State after all?
Aikaterini Tsampi
University of Groningen, the Netherlands
Abstract
The case-law on Article 18 of the European Convention on Human Rights has been evolving
recently in a dramatic fashion. This evolution, which shaped a new doctrine on the misuse of
power, focuses on the criminalisation of dissent within a State where undemocratic tendencies
arise. The purpose of this article is to highlight these undemocratic tendencies and demonstrate
that Article 18 ECHR addresses the systemic deficiencies in the balance of powers within a State.
to erode the social, political and economic contre-pouvoirs within a State and when the institutional
contre-pouvoirs, namely the judicial and the legislative branch of government, fail to avert this
erosion.
Keywords
European Court of Human Rights, European Convention on Human Rights, Article 18, misuse of
power, de
´tournement de pouvoir,contre-pouvoirs,ruleoflaw,democracy,badfaith,ulterior
purpose, reasons of state, chilling effect
Mots cl´
es
Cour europe
´enne des droits de l’homme, Convention europe
´enne des droits de l’homme, article
18, de
´tournement de pouvoir, contre-pouvoirs, e
´tat de droit, de
´mocratie, mauvaise foi, but
inavoue
´, raisons d’e
´tat, effet dissuasif
Corresponding author:
Aikaterini Tsampi, Assistant Professor of Public International Law, Faculty of Law – Department of Transboundary Legal
Studies, University of Groningen, Groningen, the Netherlands.
E-mail: a.tsampi@rug.nl
Netherlands Quarterly of Human Rights
2020, Vol. 38(2) 134–155
ªThe Author(s) 2020
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DOI: 10.1177/0924051920923606
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1. INTRODUCTION
An honest man does not become a gangster in twenty-four hours. When an honest man suddenly does
something very wicked, it means that he has long been corrupted by evil. In thought and conscience he
succumbed to temptation. (…) Democracies do not become nazi countries in one day. Evil progresses
cunningly, with a minority operating, as it were, to remove levers of control.
1
lingly depicted by Pierre-Henri Teitgen, during the first session of the Consultative Assembly of
the Council of Europe in 1949. The intention of the founding fathers of the Convention was to
avoid giving ‘evilly disposed persons the opportunity to create a totalitarian Government which
will destroy human rights altogether’.
2
The establishment of a collective guarantee of essential
liberties and fundamental rights in Europe would thus ‘allow Member-States to prevent −before it
is too late −any new member who might be threatened by a rebirth of totalitarianism from
succumbing to the influence of evil, as has already happened in conditions of general apathy’.
3
During the near seven decades that have passed since the first session of the Consultative
Assembly of the Council of Europe, the interpretation and application of the Convention by the
European Court of Human Rights (‘Court’or ‘ECtHR’) has largely contributed to the protection of
democracy and the rule of law in Europe. The fear of the rebirth of totalitarianism in Europe is not,
however, a thing of the past. Many European States are currently facing democracy and rule of law
challenges. The rule of law crisis in Hungary and Poland, pertaining in particular to certain reforms
of the judicial systems, or the post-coup measures adopted in Turkey and the 2017 Turkish
constitutional reform are but a few examples.
In this conjuncture, the Court recently reinvigorated its case law on Article 18 of the Conven-
tion (limitations on use of restrictions on rights). This Article more specifically, provides that ‘[t]he
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’. The turning point in the
Court’s jurisprudence came when the Grand Chamber judgment Merabishvili v Georgia was
delivered in November 2017.
4
This new case law can qualify as a doctrinal response to the cunning
progression of the evil of totalitarianism.
5
Surely, the term of ‘evil’, which appears as a leitmotiv in
the preparatory works of the Convention, is not a legal one. Interestingly enough, though, one can
argue that it alludes to the notion of ‘bad faith’to the extent that it reflects the idea of a profoundly
immoral and wicked spirit.
‘Bad faith’constitutes a focal point in the new case-law of the Court on the limitations on use of
restrictions on rights that the present article aspires to conceptualise. Drawing inspiration from the
doctrine on the détournement de pouvoir in French Administrative Law, this provision on what
1. Pierre-Henri Teitgen (France) during the first session of the Consultative Assembly in 1949: Collected edition of the
‘Travaux préparatoires’of the European Convention on Human Rights, vol I (Martinus Nijhoff 1975) 292.
2. Sir David Maxwell-Fyfe (United-Kingdom) during the first session of the Consultative Assembly in 1949: ibid 118.
3. Report presented in 1949 by Pierre-Henri Teitgen (France) in the name of the Committee for Legal and Administrative
Affairs: ibid 192.
4. Merabishvili v Georgia App no 72508/13 (ECHR, 28 November 2017).
5. Laurence Helfer, ‘Populism and International Human Rights Institutions: A Survival Guide’(2018) iCourts Working
Paper Series No. 133/2018 accessed 10 September 2019, 11–13.
Tsampi 135
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