Rule of law in peril? Checking states’ misuse of power–implications and consequences of article 18 violations

Book chapter


Donald, A. and Leach, P. 2022. Rule of law in peril? Checking states’ misuse of power–implications and consequences of article 18 violations. in: Liber Amicorum Robert Spano Strasbourg Council of Europe. pp. 401-413
Chapter titleRule of law in peril? Checking states’ misuse of power–implications and consequences of article 18 violations
AuthorsDonald, A. and Leach, P.
Abstract

Article 18 of the European Convention on Human Rights prevents state authorities from restricting substantive rights contained in the Convention for ulterior purposes, and has been applied, in particular, in political prosecution cases – in other words, where state bodies have targeted individuals in bad faith. At its core, the object and purpose of Article 18 is to prohibit the misuse of power. This short contribution to the Liber Amicorum to Robert Spano (which does not, of course, aim to be comprehensive) discusses the main elements of Article 18 as they have been interpreted by the Court and considers the contexts in which such “bad faith” claims have been successfully or unsuccessfully raised, before turning to the question of the import and impact of these cases.We shall see that a once insurmountable standard and burden of proof on applicants have given way to a more flexible and contextual approach to assessing bad faith, but that judicial dissension remains about, inter alia, the requirement for ulterior motives to be the predominant reason for restricting rights and the criteria for applying this test in particular cases.We conclude that the developing Article 18 jurisprudence signifies an appropriate response to the increasingly authoritarian and repressive measures being meted out in some parts of Europe.

Sustainable Development Goals16 Peace, justice and strong institutions
Research GroupLaw and Politics
Page range401-413
Book titleLiber Amicorum Robert Spano
PublisherCouncil of Europe
Place of publicationStrasbourg
ISBN
Hardcover978-2-8072-0927-5
Publication dates
OnlineNov 2022
Publication process dates
Deposited11 Jan 2023
AcceptedOct 2022
Web address (URL)https://www.anthemis.be/en/shop/product/libspa-liber-amicorum-robert-spano-13624#attr=14220,14219,14218
LanguageEnglish
Permalink -

https://repository.mdx.ac.uk/item/8q392

  • 108
    total views
  • 0
    total downloads
  • 2
    views this month
  • 0
    downloads this month

Export as

Related outputs

Explainer: Leaving the European Convention on Human Rights
Donald, A. and Grogan, J. 2024. Explainer: Leaving the European Convention on Human Rights. UK in a Changing Europe.
Explainer: The UK’s ECHR record: how common are Rule 39 orders and how often is the UK found to have violated rights?
Donald, A. and Grogan, J. 2024. Explainer: The UK’s ECHR record: how common are Rule 39 orders and how often is the UK found to have violated rights? UK in a Changing Europe.
Earning deference from Strasbourg: Has the UK got the message?
Donald, A. 2022. Earning deference from Strasbourg: Has the UK got the message? The Human Rights Act After 22 Years: Evolution, Impact, Future Directions. Goodenough College, London, WC1N 2AB 03 - 04 Nov 2022
Defeat in the Supreme Court: where next for UK asylum policy?
Donald, A. and Grogan, J. 2023. Defeat in the Supreme Court: where next for UK asylum policy? Verfassungsblog.
Explainer: What are the Rwanda Treaty and the Safety of Rwanda (Asylum and Immigration) Bill?
Donald, A. and Grogan, J. 2023. Explainer: What are the Rwanda Treaty and the Safety of Rwanda (Asylum and Immigration) Bill? UK in a Changing Europe.
Explainer: The Illegal Migration Act 2023
Donald, A. and Grogan, J. 2023. Explainer: The Illegal Migration Act 2023. UK in a Changing Europe.
Explainer: Compliance with the European Convention on Human Rights: the UK and Europe
Donald, A. and Grogan, J. 2023. Explainer: Compliance with the European Convention on Human Rights: the UK and Europe. UK in a Changing Europe.
Explainer: The Illegal Migration Bill
Donald, A. and Grogan, J. 2023. Explainer: The Illegal Migration Bill. UK in a Changing Europe.
The UK vs the ECtHR: Anatomy of a politically engineered collision course
Donald, A. and Leach, P. 2023. The UK vs the ECtHR: Anatomy of a politically engineered collision course. Verfassungsblog. https://doi.org/10.17176/20230505-204527-0
Responding to seismic change in Europe—The road to Reykjavik and beyond
Donald, A. and Leach, P. 2023. Responding to seismic change in Europe—The road to Reykjavik and beyond. European Human Rights Law Review. 2023 (2), pp. 95-111.
Adapt or Die? The Council of Europe seeks new ideas to address ‘seismic change’
Donald, A. and Leach, P. 2023. Adapt or Die? The Council of Europe seeks new ideas to address ‘seismic change’. Verfassungsblog.
Explainer: the Bill of Rights Bill
Donald, A. 2022. Explainer: the Bill of Rights Bill. ukandeu.ac.uk.
Why the Bill of Rights poses problems for human rights in Europe – and the UK’s international standing
Donald, A. and Leach, P. 2022. Why the Bill of Rights poses problems for human rights in Europe – and the UK’s international standing. ukandeu.ac.uk.
A time of reckoning? Russia and the Council of Europe
Leach, P. 2022. A time of reckoning? Russia and the Council of Europe. European Human Rights Law Review. 2022 (3), pp. 219-227.
Human Rights - the essential frame of reference in response to the COVID-19 pandemic
Donald, A. and Leach, P. 2022. Human Rights - the essential frame of reference in response to the COVID-19 pandemic. in: Grogan, J. and Donald, A. (ed.) Routledge Handbook on Law and the COVID-19 pandemic Abingdon, Oxon Routledge. pp. 101-116
Public health is not the only measure of success. The ‘health’ of democratic institutions matters too
Donald, A. and Grogan, J. 2022. Public health is not the only measure of success. The ‘health’ of democratic institutions matters too. London School of Economics and Political Science.
Policy paper on the implications of COVID-19: Insights into state governance and the rule of law, human rights and good governance during the COVID-19 pandemic
Grogan, J. and Donald, A. 2022. Policy paper on the implications of COVID-19: Insights into state governance and the rule of law, human rights and good governance during the COVID-19 pandemic. Leuven European Commission.
A time of reckoning? Russia and the Council of Europe [Blog post]
Leach, P. 2022. A time of reckoning? Russia and the Council of Europe [Blog post]. Ghent University.
Lessons for a 'post-pandemic' future
Grogan, J. and Donald, A. 2022. Lessons for a 'post-pandemic' future. in: Grogan, J. and Donald, A. (ed.) Routledge Handbook of Law and the COVID-19 Pandemic Abingdon, Oxon Routledge. pp. 473-484
Principled resistance to ECtHR Judgments – A New Paradigm?, edited by Marten Breuer [Book review]
Donald, A. 2020. Principled resistance to ECtHR Judgments – A New Paradigm?, edited by Marten Breuer [Book review]. European Convention on Human Rights Law Review. 1 (2), pp. 297-302. https://doi.org/10.1163/26663236-00102003
Some justice out of repression and reprisals: on the plight of Human Rights defenders in Azerbaijan [Blog post]
Leach, P. 2021. Some justice out of repression and reprisals: on the plight of Human Rights defenders in Azerbaijan [Blog post]. Bristol, UK Open Society Justice Initiative and University of Bristol Human Rights Implementation Centre.
The right to life - operational policing and the investigation of fatal incidents
Leach, P. 2021. The right to life - operational policing and the investigation of fatal incidents. United Kingdom Human Rights in Action Blogspot.
On inter-state litigation and armed conflict cases in Strasbourg
Leach, P. 2021. On inter-state litigation and armed conflict cases in Strasbourg. European Convention on Human Rights Law Review. 2 (1), pp. 27-74. https://doi.org/10.1163/26663236-bja10014
Urgency at the European Court of Human Rights: new directions and future prospects for the interim measures mechanism?
Leach, P. 2020. Urgency at the European Court of Human Rights: new directions and future prospects for the interim measures mechanism? in: Rieter, E. and Zwaan, K. (ed.) Urgency and Human Rights: The protective potential and legitimacy of interim measures The Hague T.M.C. Asser Press, Springer. pp. 197-222
Time for the gloves to come off?: The response by the Parliamentary Assembly of the Council of Europe to rule of law backsliding
Donald, A. and Speck, A. 2021. Time for the gloves to come off?: The response by the Parliamentary Assembly of the Council of Europe to rule of law backsliding. European Convention on Human Rights Law Review. 2 (2), pp. 241-273. https://doi.org/10.1163/26663236-bja10025
Damage control after Georgia v Russia (II) – holding states responsible for human rights violations during armed conflict [Blog post]
Gavron, J. and Leach, P. 2021. Damage control after Georgia v Russia (II) – holding states responsible for human rights violations during armed conflict [Blog post]. Ghent University.
Compliance in the UK in the age of subsidiarity
Donald, A. 2021. Compliance in the UK in the age of subsidiarity. in: Grote, R., Morales Antoniazzi, M. and Paris, D. (ed.) Research Handbook on Compliance in International Human Rights Law Edward Elgar Publishing . pp. 202-223
Engaging with Europe after Brexit: Time to reset the UK’s relationship with the Council of Europe
Donald, A. and Leach, P. 2020. Engaging with Europe after Brexit: Time to reset the UK’s relationship with the Council of Europe. London, UK Foreign Policy Centre.
Identifying and assessing the implementation of human rights decisions
Donald, A., Long, D. and Speck, A. 2020. Identifying and assessing the implementation of human rights decisions. Journal of Human Rights Practice. 12 (1), pp. 125-148. https://doi.org/10.1093/jhuman/huaa003
The dynamics of domestic human rights implementation: lessons from qualitative research in Europe
Donald, A. and Speck, A. 2020. The dynamics of domestic human rights implementation: lessons from qualitative research in Europe. Journal of Human Rights Practice. 12 (1), pp. 48-70. https://doi.org/10.1093/jhuman/huaa007
Monitoring, cajoling and promoting dialogue: what role for supranational human rights bodies in the implementation of individual decisions?
Leach, P., Murray, R. and Sandoval, C. 2020. Monitoring, cajoling and promoting dialogue: what role for supranational human rights bodies in the implementation of individual decisions? Journal of Human Rights Practice. 12 (1), pp. 71-100. https://doi.org/10.1093/jhuman/huaa009
Fact-finding: European Court of Human Rights (ECtHR)
Leach, P. 2019. Fact-finding: European Court of Human Rights (ECtHR). in: Ruiz Fabri, H. (ed.) Max Planck Encyclopedia of International Procedural Law [MPEiPro] Oxford Oxford University Press (OUP).
The European Court of Human Rights’ remedial practice and its impact on the execution of judgments
Donald, A. and Speck, A. 2019. The European Court of Human Rights’ remedial practice and its impact on the execution of judgments. Human Rights Law Review. 19 (1), pp. 83-117. https://doi.org/10.1093/hrlr/ngy043
What future for settlements and undertakings in international human rights resolution? [Blog post]
Jomarjidze, N. and Leach, P. 2019. What future for settlements and undertakings in international human rights resolution? [Blog post]. Ghent University.
National parliaments as guarantors of human rights in Europe: handbook for parliamentarians
Donald, A. and Speck, A. 2018. National parliaments as guarantors of human rights in Europe: handbook for parliamentarians. Strasbourg Council of Europe.
The UK can be a leader post-Brexit — on human rights
Leach, P. 2018. The UK can be a leader post-Brexit — on human rights. The Times Times Newspapers Ltd..
Ireland v. UK: revisiting the treatment of the 'Hooded Men'
Leach, P. 2014. Ireland v. UK: revisiting the treatment of the 'Hooded Men'. JURIST.
Ukraine, Russia and Crimea in the European Court of Human Rights
Leach, P. 2014. Ukraine, Russia and Crimea in the European Court of Human Rights. EJIL-talk!: Blog of the European Journal of International Law.
Thawing the frozen conflict? The European Court’s Nagorno-Karabakh judgments
Leach, P. 2015. Thawing the frozen conflict? The European Court’s Nagorno-Karabakh judgments. EJIL-talk!: Blog of the European Journal of International Law.
Strasbourg censures Georgia over detention of former prime minister – the impact of an Article 18 violation
Leach, P. 2016. Strasbourg censures Georgia over detention of former prime minister – the impact of an Article 18 violation. EJIL-talk!: Blog of the European Journal of International Law.
The continuing utility of international human rights mechanisms? [Blog post]
Leach, P. 2017. The continuing utility of international human rights mechanisms? [Blog post]. EJIL-talk!: Blog of the European Journal of International Law.
Copenhagen: keeping on keeping on. A reply to Mikael Rask Madsen and Jonas Christoffersen on the draft Copenhagen declaration [Blog post]
Leach, P. and Donald, A. 2018. Copenhagen: keeping on keeping on. A reply to Mikael Rask Madsen and Jonas Christoffersen on the draft Copenhagen declaration [Blog post]. EJIL-talk!: Blog of the European Journal of International Law.
A wolf in sheep’s clothing: why the draft copenhagen declaration must be rewritten
Donald, A. and Leach, P. 2018. A wolf in sheep’s clothing: why the draft copenhagen declaration must be rewritten. EJIL-talk!: Blog of the European Journal of International Law.
Introduction
Donald, A., Buckley, C. and Leach, P. 2016. Introduction. in: Buckley, C., Donald, A. and Leach, P. (ed.) Towards Convergence in International Human Rights Law: Approaches of Regional and International Systems De Gruyter Brill.
The European Court of Human Rights: achievements and prospects
Leach, P. 2018. The European Court of Human Rights: achievements and prospects. in: Oberleitner, G. (ed.) International Human Rights Institutions, Tribunals and Courts: Legacy and Promise Berlin Springer. pp. 423-442
Egregious human rights violations in Chechnya: appraising the pursuit of justice
Leach, P. 2017. Egregious human rights violations in Chechnya: appraising the pursuit of justice. in: Mälksoo, L. and Benedek, W. (ed.) Russia and the European Court of Human Rights: the Strasbourg effect Cambridge Cambridge University Press (CUP). pp. 255-294
Parliaments as compliance partners in the European Convention on Human Rights system
Donald, A. 2017. Parliaments as compliance partners in the European Convention on Human Rights system. in: Saul, M., Follesdal, A. and Ulfstein, G. (ed.) The International Human Rights Judiciary and National Parliaments: Europe and Beyond Cambridge Cambridge University Press (CUP). pp. 75-109
Taking a case to the European Court of Human Rights [4th ed.]
Leach, P. 2017. Taking a case to the European Court of Human Rights [4th ed.]. Oxford Oxford University Press (OUP).
What is justice? Reflections of a practitioner at the European Court of Human Rights
Leach, P. 2013. What is justice? Reflections of a practitioner at the European Court of Human Rights. European Human Rights Law Review.
Taking a case to the European Court of Human Rights [3rd ed.]
Leach, P. 2011. Taking a case to the European Court of Human Rights [3rd ed.]. Oxford Oxford University Press (OUP).
No longer offering fine mantras to a parched child? The European Court's developing approach to remedies
Leach, P. 2013. No longer offering fine mantras to a parched child? The European Court's developing approach to remedies. in: Føllesdal, A., Peters, B. and Ulfstein, G. (ed.) Constituting Europe: The European Court of Human Rights in a national, European and global context Cambridge Cambridge University Press (CUP).
Phone-hacking, the famous and a free media - balancing freedom of the press and privacy
Leach, P. 2012. Phone-hacking, the famous and a free media - balancing freedom of the press and privacy. in: Freedom of expression: essays in honour of Nicolas Bratza, President of the European Court of Human Rights Oisterwijk Wolf Legal Publishers. pp. 87-97
Quelles sont les reparations adequates dans les affaires de disparitions? Lecons issues des affaires sue la Tchetchenie
Leach, P. 2010. Quelles sont les reparations adequates dans les affaires de disparitions? Lecons issues des affaires sue la Tchetchenie. in: Lambert Abdelgawad, E. and Martin-Chenut, K. (ed.) Réparer les violations graves et massives des droits de l'homme: la court interaméricaine, pionnière et modèle? Paris Societe de Legislation Comparee. pp. 291-307
The european system and approach
Leach, P. 2013. The european system and approach. in: Sheeran, S. and Rodney, N. (ed.) Routledge Handbook of International Human Rights Law Abingdon Routledge. pp. 407-425
The duty to investigate right to life violations across three regional systems: harmonisation or fragmentation of international human rights law?
Leach, P., Murray, R. and Sandoval, C. 2016. The duty to investigate right to life violations across three regional systems: harmonisation or fragmentation of international human rights law? in: Buckley, C., Donald, A. and Leach, P. (ed.) Towards convergence in international human rights law: approaches of regional and international systems Leiden De Gruyter Brill.
The right to life - interim measures and the preservation of evidence in conflict situations
Leach, P. 2016. The right to life - interim measures and the preservation of evidence in conflict situations. in: Early, L. and Austin, A. (ed.) The Right to Life under Article 2 of the European Convention on Human Rights: Twenty years of legal developments since McCann v the United Kingdom: In honour of Michael O'Boyle Oisterwijk Wolf Legal Publishers. pp. 171-178
The Parliamentary Assembly of the Council of Europe
Leach, P. 2017. The Parliamentary Assembly of the Council of Europe. in: Schmahl, S. and Breuer, M. (ed.) The Council of Europe:Its Laws and Policies Oxford Oxford University Press (OUP). pp. 166-211
A democratic defence of the European Court of Human Rights
Donald, A. and Leach, P. 2016. A democratic defence of the European Court of Human Rights. Oxford University Press (OUP).
Role of national parliaments
Donald, A. and PluriCourts and the Council of Europe 2014. Role of national parliaments. Conference on the Long-Term Future of the European Court of Human Rights. Oslo 07 - 08 Apr 2014 Council of Europe, PluriCourts. pp. 178-185
The role of parliaments in implementing ECHR standards: overview of existing structures and mechanisms
Donald, A. and Parliamentary Assembly of the Council of Europe 2015. The role of parliaments in implementing ECHR standards: overview of existing structures and mechanisms. Strasbourg Parliamentary Assembly of the Council of Europe.
The right to freedom of religion or belief and its intersection with other rights
Donald, A., Howard, E. and ILGA-Europe 2015. The right to freedom of religion or belief and its intersection with other rights. Brussels, Belgium ILGA-Europe.
Identifying human rights stories: a scoping study
Donald, A. and Mottershaw, E. 2014. Identifying human rights stories: a scoping study. London Middlesex University.
Parliaments and the European Court of Human Rights
Donald, A. and Leach, P. 2016. Parliaments and the European Court of Human Rights. Oxford Oxford University Press (OUP).
Evaluating the impact of selected cases under the Human Rights Act on public services provision
Donald, A., Mottershaw, E., Leach, P. and Watson, J. 2009. Evaluating the impact of selected cases under the Human Rights Act on public services provision. Manchester, UK Equality and Human Rights Commission.
Poverty, inequality and human rights: do human rights make a difference?
Donald, A. and Mottershaw, E. 2009. Poverty, inequality and human rights: do human rights make a difference? Joseph Rowntree Foundation.
Developing a Bill of Rights for the UK
Donald, A. 2010. Developing a Bill of Rights for the UK. Manchester, UK Equality and Human Rights Commission.
Religion or belief, equality and human rights in England and Wales
Donald, A. 2012. Religion or belief, equality and human rights in England and Wales. Manchester, UK Equality and Human Rights Commission.
Debating social rights [Book review]
Donald, A. 2012. Debating social rights [Book review]. Public Law. 2012 (Apr), pp. 370-374.
Opinion: a Bill of Rights for the UK? Why the process matters
Donald, A. 2010. Opinion: a Bill of Rights for the UK? Why the process matters. European Human Rights Law Review. 5, pp. 459-464.
Religion or belief in the workplace and service delivery: findings from a call for evidence
Mitchell, M., Beninger, K., Donald, A., Howard, E. and NatCen Social Research 2015. Religion or belief in the workplace and service delivery: findings from a call for evidence. Equality and Human Rights Commission.
The implementation of judgments of the European Court of Human Rights against the UK: unravelling the paradox
Donald, A. 2015. The implementation of judgments of the European Court of Human Rights against the UK: unravelling the paradox. in: Ziegler, K., Wicks, E. and Hodson, L. (ed.) The UK and European Human Rights: A Strained Relationship? Oxford Hart. pp. 135-162
The role of parliaments following judgments of the European Court of Human Rights
Donald, A. and Leach, P. 2015. The role of parliaments following judgments of the European Court of Human Rights. in: Hunt, M., Hooper, H. and Yowell, P. (ed.) Parliaments and Human Rights: Redressing the Democratic Deficit Oxford Hart. pp. 59-92
The implementation and impact of the Human Rights Act 1998 in the UK
Donald, A. 2014. The implementation and impact of the Human Rights Act 1998 in the UK. PhD thesis Middlesex University School of Law
The Chechen conflict: analysing the oversight of the European Court of Human Rights
Leach, P. 2008. The Chechen conflict: analysing the oversight of the European Court of Human Rights. European Human Rights Law Review. 2008 (6), pp. 732-761.
International human rights & fact-finding: an analysis of the fact-finding missions conducted by the European Commission and Court of Human Rights
Leach, P., Paraskeva, C. and Uzelac, G. 2009. International human rights & fact-finding: an analysis of the fact-finding missions conducted by the European Commission and Court of Human Rights. London, UK Human Rights & Social Justice Research Institute, London Metropolitan University.
South Ossetia (2008)
Leach, P. 2012. South Ossetia (2008). in: Wilmshurst, E. (ed.) International law and the classification of conflicts Oxford, UK Oxford University Press (OUP). pp. 317-355
The UK and the European Court of Human Rights
Donald, A., Gordon, J. and Leach, P. 2012. The UK and the European Court of Human Rights. Equality and Human Rights Commission.
Responding to systemic human rights violations: an analysis of pilot judgments of the European Court of Human Rights and their impact at national level
Leach, P., Hardman, H., Stephenson, S. and Blitz, B. 2010. Responding to systemic human rights violations: an analysis of pilot judgments of the European Court of Human Rights and their impact at national level. Intersentia.
A Bill of Rights for the United Kingdom? Lessons from overseas
Donald, A. 2013. A Bill of Rights for the United Kingdom? Lessons from overseas. in: Masterman, R. and Leigh, I. (ed.) The United Kingdom's statutory Bill of Rights: constitutional and comparative perspectives Oxford, UK Oxford University Press (OUP).
Advancing debate about religion or belief, equality and human rights: grounds for optimism?
Donald, A. 2013. Advancing debate about religion or belief, equality and human rights: grounds for optimism? Oxford Journal of Law and Religion. 2 (1), pp. 50-71. https://doi.org/10.1093/ojlr/rwt002
Limits and achievements of the Human Rights Act from the socio-economic point of view: the HRA, poverty and social exclusion
Donald, A. and Mottershaw, E. 2012. Limits and achievements of the Human Rights Act from the socio-economic point of view: the HRA, poverty and social exclusion. in: Kang-Riou, N., Milner, J. and Nayak, S. (ed.) Confronting the Human Rights Act: Contemporary Themes and Perspectives London and New York Routledge. pp. 141-158
Evaluating the impact of human rights litigation on policy and practice: a case study of the UK
Donald, A. and Mottershaw, E. 2009. Evaluating the impact of human rights litigation on policy and practice: a case study of the UK. Journal of Human Rights Practice. 1 (3), pp. 339-361. https://doi.org/10.1093/jhuman/hup019