Political persecution in the context of European Court of Human Rights case law


The European Court of Human Rights [the Court] has examined charges of politically motivated human rights on many occasions. This was most often in connection with violations of Article 18 of the European Convention on Human Rights [the Convention] which 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

Although in certain cases specific applications under Article 18 have not been examined, and these issues were considered within the context of violations of other articles of the Convention, the European Court has repeatedly stated that, for example, expression of political views enjoys a greater degree of protection, as does justification of restrictions on the activities of political parties which should be checked more scrupulously than other associations.

The Court has examined over 200 cases regarding possible violation of Article 18. Only in three cases did it find violations by the State: in the cases of Gusinskiy v. Russia  № 70276/01), Cebotari v. Moldova (№ 35615/06) and Lutsenko v. Ukraine № 6492/11).

In other cases where the Court did not find violations, the applicants had also claimed violation of their rights together with Article 18 of the Convention. For example, in the case of Engel and others v. the Netherlands, two applicants claimed that they had faced disciplinary measures for publications in a military journal through their activities in trade unions, and not, as the government asserted, in order to prevent infringement of public order in the army.

Article 18 does not have autonomous independent significance, it can be applied only in conjunction with violation of some other article of the Convention or some other right protected by the Convention. In such a situation, the Court not only finds that there has been a violation of a particular right, but also determines the purpose of the restriction in human rights and whether such an aim was legitimate.

For example, in the three abve-mentioned cases where the Court found a violation of Article 18, this violation was in conjunction with Article 5 of the Convention. They were cases where the Court found that the person had not been arrested for the purpose of criminal prosecution or another purpose constituting a legitimate answer to this article of the Convention. The Court does not necessarily have to indicate the real motives of the authorities. As a rule, however, these reasons are of a political nature in the broad sense of the word: being stripped of ones property, restricted possibility of expressing political position, etc.

Article 18 of the Convention protects against abuse of power by the State or violation by it of the principle of good faith of its actions. . For example in the case of Kamma v. the Netherlands, the Committee of Ministers stated that “Article 18, like Article 14 of the Convention, does not have an autonomous role and can only be used in combination with another article of the Convention. However there may be a situation where there was a violation of Article 18 together with another article of the Convention, although there was no violation of this right separately”.

The European Court of Human Rights has imposed a fairly high standard of proof for violation of Article 18.

On the one hand, the purpose of proof lies totally with the application since it is presumed that the authorities restricted human rights “with good intent” and were not misusing power. On the other, the proof must be sufficiently convincing.

In the case of Engel and others v. the Netherlands  the applicant could not prove ill motives of the authorities. Just as in the case of Hendside v. the United Kingdom, the application was unable to prove that the confiscation of his book had been politically motivated, and not aimed at “protecting the morals” of a children’s audience.  See also X v. Germany and McFeeley v. the UK

Also in a number of cases, the Court by establishing a high standard of poof decided not to examine the question of whether there had been a violation of Article 18 of the Convention separately, confining itself to accepting violation of rights under another article.  See also Sporrong and Lönnroth v. Sweden and Bosano v. France.

It is important to review the following cases in more detail, these being at present the most important in the context of ECHR case law regarding Article 18 of the Convention.

Gusinskiy v. Russia

Vladimir Gusinskiy is a former Chairman of the Board of and majority shareholder in ZAO Media Most, a private Russian media holding company, which owned NTV, a popular television channel.

On 15 March 2000 a criminal investigation was initiated against him concerning allegations of fraud.  He was detained on 13 June 2000, and on 16 June he was charged with fraud and released in exchange for an undertaking not to leave the country.  

While in detention, he was approached by the Acting Minister for Press and Mass Communications who offered to drop the criminal charges against him if he sell Media Most to Gazprom, at a price to be determined by Gazprom. On 20 July 2000 an Agreement was signed between the Acting Minister and Gusinskiy selling the media company in exchange for the termination of all criminal cases and guarantee of his safety. On 26 July all criminal cases against him were terminated.  Gusinskiy left the country on 21 August, and after this, Media Most refused to honour the July agreement, claiming that it had been entered into under duress.

In September new criminal cases were opened against Gusinskiy. In December he was detained in Spain, however on 4 April 2001 a court in Spain refused to extradite him to Russia.

The European Court of Human Rights in its judgement from 19 May 2004 noted that the government had not denied the existence of the July Agreement. It added:

76.  In the Court's opinion, it is not the purpose of such public-law matters as criminal proceedings and detention on remand to be used as part of commercial bargaining strategies. The facts that Gazprom asked the applicant to sign the July agreement when he was in prison, that a State minister endorsed such an agreement with his signature and that a State investigating officer later implemented that agreement by dropping the charges strongly suggest that the applicant's prosecution was used to intimidate him.

77.  In such circumstances the Court cannot but find that the restriction of the applicant's liberty permitted under Article 5 § 1 (c) was applied not only for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence, but also for other reasons.

78.  There has accordingly been a violation of Article 18 of the Convention taken in conjunction with Article 5.

Cebotari v. Moldova

In 1997 Mihail Cebotari was the head of a Moldovan State-owned power distribution company called Moldtranselectro.  The company entered into contractual arrangements concerning importation of electricity from Ukraine to Moldova and involving, in addition to Moldtranselectro, a Ukrainian State-owned power distribution company, a Ukrainian private company and a Moldovan private company called Oferta Plus.  The agreement to which Moldtranselectro was a party provided, inter alia, that Oferta Plus would pay the Ukrainian private company for the electricity supplied to Moldtranselectro in United States dollars (USD) and would later be paid back by Moldtranselectro in Moldovan lei (MDL) at the official exchange rate on the day of payment.  In accordance with these agreements, Oferta Plus paid more than 33 million USD. However the Moldova Finance Ministry refused to pay part of the amount. In October 1998 Oferta Plus initiated civil proceedings against both the Finance Ministry and Moldtranselectro, and various courts found in favour of Oferta Plus and confirmed its right to be paid MDL 20,000,000

On 7 February 2001 the Supreme Court of Moldova rejected the Finance Ministry’s appeal.

In April 2004 Oferta Plus lodged a suit over non-enforcement of the final judgments in its favour.  The Ministry sought help from the Prosecutor General’s Office which on 19 October 2004 initiated a criminal case. On 10 February the Supreme Court reviewed its judgement in favour of the Finance Ministry. On 25 October 2005 the criminal case was terminated.  In 2006 Oferta Plus lodged an application with the European Court of Human Rights.

After this, on 26 April 2006 a criminal case was again initiated and on 9 August 2006 Cebotari was declared a suspect in the criminal proceedings. In particular he was accused of having written the letter of 25 March 1998 to the Finance Ministry asking it to issue a Treasury bond in favour of Oferta Plus for use of the electricity. The Director of Oferta Plus was indicted on similar charges.  On the same date both men were arrested and remanded in custody for ten days. According to Cebotari, before being arrested the investigator made it clear to him that his arrest or release depended on whether he would agree to make the declarations expected of him.  Cebotari was held in custody until 19 November 2006, and then released on bail. On 27 June 2007 he was acquitted.

The European Court noted that the purpose of pre-trial detention is the further investigation of a criminal case which must confirm or remove the suspicions forming the grounds for the arrest.  However the requirement that there be reasonable suspicion is an important element and guarantee against arbitrary arrest. “The fact that a suspicion is held in good faith is insufficient. The words “reasonable suspicion” mean the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence…”

“The Court stresses in this connection that in the absence of a reasonable suspicion arrest or detention of an individual must never be imposed for the purpose of making him confess or testify against others or to elicit facts or information which may serve to ground a reasonable suspicion against him.

The Court found that Cebotari’s detention between 9 August and 19 November 2006 was not based on a reasonable suspicion that he had committed an offence since it contradicted the conclusions reached by civil courts.  There was thus “no justification for his arrest and detention. Indeed, having regard to its conclusion in paragraph 141 of the Oferta Plus judgment  the Court can only conclude that the real aim of the criminal proceedings and of the applicant's arrest and detention was to put pressure on him with a view to hindering Oferta Plus from pursuing its application before the Court. It therefore finds that the restriction on the applicant's right to liberty was applied for a purpose other than the one prescribed in Article 5 § 1(c). On that account there has been a breach of Article 18 of the Convention taken in conjunction with Article 5 § 1.

Khodorkovsky v. Russia

Before his arrest in 2003 Mikhail Khodorkovsky was one of the richest people in Russia. He owned Yukos and other large enterprises. At the beginning of 2004 he announced that he was giving major financial support to the opposition parties Yabloko and Union of Right Forces.  He also issued a number of statements criticizing the anti-democratic policies of the government. He founded the non-profit-making Open Russia Foundation which financed various projects in the country.

He was arrested and remanded in custody on 25 October 2005 up till 31 May 2005, up till the moment when the sentence in his case came into force. He was charged with a number of economic crimes: fraud; tax evasion and others.

Considering this case, the Court found violations of several aspects of Articles 3 and 5 of the Convention. It also separately considered the issue of possible violation of Article 18 combined with Article 5. Khodorkovsky asserted that the reasons for his detention were linked with political aims and to obtain the property of his company. In connection with this, the Court noted:

“255.  The Court reiterates that the whole structure of the  Convention rests on the 

general assumption that public authorities in the member States act in good faith. 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.

256.  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.

257.  In the case at hand the applicant referred to various sources which confirm his allegations of “improper motive”, First, he invited the Court to consider the facts surrounding his business and political activities, as well as the major policy lines adopted by the President’s administration at the relevant time. Indeed, those facts cannot be ignored. In particular, the Court acknowledges that the applicant had political ambitions which admittedly went counter to the mainstream line of the administration, that the applicant, as a rich and influential man, could become a serious political player and was already supporting opposition parties, and that it was a State-owned company which benefited most from the dismantlement of the applicant’s industrial empire.

258.  On the other hand, any person in the applicant’s position would be able to make similar allegations. In reality, it would have been impossible to prosecute a suspect with the applicant’s profile without far-reaching political consequences. The fact that the suspect’s political opponents or business competitors might directly or indirectly benefit from him being put in jail should not prevent the authorities from prosecuting such a person if there are serious charges against him. In other words, high political status does not grant immunity. The Court is persuaded that the charges against the applicant amounted to a “reasonable suspicion” within the meaning of Article 5 § 1 (c) of the Convention.



259.  Nevertheless, the combination of the factors mentioned above have caused many people to believe that the applicant’s prosecution was driven by the desire to remove him from the political scene and, at the same time, toappropriate his wealth. The applicant strongly relies on those opinions; in particular, he relies on resolutions of political institutions, NGOs, statements of various public figures, etc. The Court took note of those opinions. However, it must recall that political process and adjudicative process are fundamentally different. It is often much easier for a politician to take a stand than for a judge, since the judge must base his decision only on evidence in the legal sense.

260.  Finally, the Court turns to the findings of several European courts in the proceedings involving former Yukos managers and Yukos assets. Those findings are probably the strongest argument in favour of the applicant’s complaint under Article 18 of the Convention. However, the evidence and legal arguments before those courts might have been different from those in the case under examination. More importantly, assuming, that all courts had the same evidence and arguments before them, the Court reiterates that its own standard of proof applied in Article 18 cases is very high and may be different from those applied domestically. The Court admits that the applicant’s case may raise a certain suspicion as to the real intent of the authorities, and that this state of suspicion might be sufficient for the domestic courts to refuse extradition, deny legal assistance, issue injunctions against the Russian Government, make pecuniary awards, etc. However, it is not sufficient for this Court to conclude that the whole legal machinery of the respondent State in the present case was ab intio misused, that from the beginning to the end the authorities were acting with bad faith and in blatant disregard of the Convention. This is a very serious claim which requires an incontrovertible and direct proof. Such proof, in contrast to the Gusinskiy case, cited above, is absent from the case under examination.

261.  In such circumstances the Court cannot find that Article 18 was breached in this case.

OAO Neftyanaya Kompaniya Yukos v. Russia

The oil company Yukos was a publicly-traded private open joint-stock company, with Mikhail Khodorkovsky its dominant owner. In December 2003 after a check was carried out by the tax inspectorate, serious charges were pressed against the company of tax evasion, and later, over the next three years the company had to pay around 2 888 227 669 EUR. Through a court case during 2004 this amount was slightly reduced to 2 888 227 669 EUR. Later the company, as well as daughter companies, faced various charges linked with tax evasion. Later the company’s property, as well as its daughter companies, was largely confiscated by the State in lieu of tax debts, and later Yukos was declared bankrupt since it couldn’t pay its creditors back.

The company claimed that numerous court cases against it had been initiated in order to destroy the company and seize its property. Assessing this statement, the Court noted that in order to find a State guilty of a violation of Article 18, the applicant must provide irrefutable and direct proof of his allegations. The Court t rejected the applicant company’s claims that the company’s debt had been recognised as a result of an unforeseeable, unlawful and arbitrary interpretation of the domestic law.

“In view of these findings, the Court will proceed on the assumption that the company’s debt in the enforcement proceedings resulted from legitimate actions by the respondent Government to counter the company’s tax evasion and the burden of proof would accordingly rest on the applicant company to substantiate its allegations…. the Court finds that it is true that the case attracted massive public attention and that comments of different sorts were made by various bodies and individuals in this connection. The fact remains, however, that those statements were made within their respective context and that as such they are of little evidentiary value for the purposes of Article 18 of the Convention. Apart from the findings already made earlier, the Court finds no indication of any further issues or defects in the proceedings against the applicant company which would enable it conclude that there has been a breach of Article 18 of the Convention on account of the applicant company’s claim that the State had misused those proceedings with a view to destroying the company and taking control of its assets.

666.  To sum up, the Court finds that there has been no violation of Article 18 of the Convention, taken in conjunctionwith Article 1 of Protocol No. 1, on account of the alleged disguised expropriation of the company’s property and the alleged intentional destruction of the company itself.

Lutsenko v. Ukraine

Yury Lutsenko is a prominent politician in Ukraine and a former Interior Minister. before his arrest, he was the leader of the opposition party Narodna Samooborona.

On 5 November 2010 charges were brought against Lutsenko of exceeding his official powers during the period from December 2007 to January 2010 when he was Interior Minister.

In December one after another episodes were added to this case. On 26 December Lutsenko was arrested and was held in custody under various court orders up till 27 February 2012 when a court found him guilty and sentenced him to 4 years imprisonment and confiscation of property.

The European Court of Human Rights found that Lutsenko’s arrest had been carried out for a purpose other than that established by Article 5 § 1 of the Convention, and accordingly in breach of its demands. It also found that his continued detention was in violation of Article 5 § 1 of the Convention. The Court also found violations of Articles 5 § 2, 5 § 3 and 5 § 4 on various counts.

Lutsenko did not himself allege violation of Article 18 of the Convention, however he made a general statement asserting that the proceedings against him and his arrest had been used in order to remove him from political life and from taking part in the next parliamentary elections. The Court itself decided to consider this complaint in terms of violation of Article 18 in combination with Article 5.

Assessing these allegations, the Court reiterated that 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.  The applicant need to convincingly demonstrate the real purpose of the State as being different from that declared.  The Court went on:

 “108.  The Court notes that when it comes to allegations of political or other ulterior motives in the context of criminal prosecution, it is difficult to dissociate the pre-trial detention from the criminal proceedings within which such detention had been ordered. The circumstances of the present case suggest, however, that the applicant’s arrest and detention, which were ordered after the investigation against the applicant had been completed, had their own distinguishable features which allow the Court to look into the matter separately from the more general context of politically motivated prosecution of the opposition leader. In the present case, the Court has already established that the grounds advanced by the authorities for the deprivation of the applicant’s liberty were not only incompatible with the requirements of Article 5 § 1 but were also against the spirit of the Convention (see paragraphs 66 to 73 above). In this context, the Court observes that the profile of the applicant, one of the opposition leaders who had communicated with the media, plainly attracted considerable public attention. It can also be accepted that being accused of abuse of office, he had the right to reply to such an accusation through the media. The prosecuting authorities seeking the applicant’s arrest explicitly indicated the applicant’s communication with the media as one of the grounds for his arrest and accused him of distorting public opinion about crimescommitted by him, discrediting the prosecuting authorities and influencing the upcoming trial in order to avoid criminal liability (see paragraph 26 above).

109.  In the Court’s opinion, such reasoning by the prosecuting authorities clearly demonstrates their attempt to punish the applicant for publicly disagreeing with accusations against him and for asserting his innocence, which he had the right to do. In such circumstances, the Court cannot but find that the restriction of the applicant’s liberty permitted under Article 5 § 1 (c) was applied not only for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence, but also for other reasons.

110.  There has accordingly been a violation of Article 18 of the Convention taken in conjunction with Article 5.”

Possible consequences of recognition by the ECHR of human rights violations 

Recognition of a violation of Article 18 of the Convention does not directly entail any particular consequences. However it is clear that in such cases there is sharp criticism of the actions of the State aimed against the principles and the spirit of the Convention on the Protection of Human Rights. This phenomenon remains fairly rare.

It would seem that recognizing violations of human rights as being politically motivated in the narrow legal sense clearly opens the way for declaring such cases to be political in a broader sense. Since such an exceptionally high standard of proof is applied for assessing such a case in the legal sense, with this leaving no doubts as to the real motives of the State.

As with the violation of any right, according to Article 46 of the Convention the State must take measures to redress the rights of the person and as far as possible return him to the position he was in before the rights were violated. According to the general rule, the state must not only pay the compensation awarded by the Court, but also explain how the person’s rights will be reinstated. However in certain exceptional circumstances in order to help the state fulfil its obligations in accordance with Article 46 of the Convention, the Court may assign a certain range of measures from which the state may determine which it needs to take. When there are in fact no other options, the Court may stipulate only one possible means of implementing the judgement.

For example, in the case of Fatullayev v. Azerbaijan, the European Court of Human Rights, having found that there had been a violation of Article 10 of the Convention, found that the actions of the application could not constitute a crime under any circumstances, and therefore ruled that he should be immediately released. In another case, Salov v. Ukraine, after the Court found a violation of Article 10, Ukraine’s Supreme Court reviewed the sentence and totally acquitted the application, although the European Court of Human Rights had not stipulated any specific means of enforcement.

In the case of violation of the right to a fair trial, as a rule it is a question of full review of the case from the very beginning, bearing in mind the Court’s judgement. In the well-known case of Abbasov v. Azerbaijan, the Court found that a new trial with the violated rights of the applicant taken into consideration would constitute sufficient measures for reinstating his rights. 

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