The new doctrine on misuse of power under Article 18 ECHR: Is it about the system of contre-pouvoirs within the State after all?

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. A violation of Article 18 ECHR occurs when the executive branch of government male fide tries 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.


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 The creation of the system of the European Convention on Human Rights ('Convention' or 'ECHR') was largely inspired by the need to address this 'cunning progression of evil' as enthrallingly 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 Convention (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 could be roughly translated in English as 'misuse of power' or 'misapplication of power', 6 prohibits the limitation of rights in bath faith for ulterior purposes based on reasons of State. 7 What is, though, precisely at stake in Article 18 cases? This is the focal research question that the present article intends to address, by critically assessing the Court's relevant case-law, especially following Merabishvili. 8 The existing literature, cited in the following sections, has already contributed to the understanding of some of the fundamental features of Article 18 and the critical analysis of Merabishvili. It has been, indeed, rightly pointed out that the findings of violations on the basis of Article 18 'stigmatise intentional and systematic abuses of power by one State party' 9 and prevent undemocratic tendencies of the contracting States. 10 In general, such systematic undemocratic tendencies may indeed vary and/or relate to violations of the Convention found on the basis of other provisions. Building on the existing scholarly work, the current study seeks to identify the overarching idea underlying an Article 18 violation, specifying, thus, the nature of these undemocratic tendencies. Considering both the factual background of the relevant cases and the solutions proposed by the Court, there are good reasons to suggest that Article 18 is connected to the functioning of the system of contre-pouvoirs within a State.
The understanding of the contre-pouvoirs approach under Article 18 of the Convention inevitably necessitates the delineation of the term contre-pouvoirs itself. Ironically, even though this term is commonly used in its French version, its conception comes from the other side of the Atlantic. Its origin is to be found in the English term 'countervailing power' coined by the Canadian-born economist John Kenneth Galbraith, to describe a theory of political modification of markets. 11 The term was imported to France in the 1970s. Unlike the original English term, contre-pouvoirs is commonly employed in constitutional law 12 to denote every organised centre of decision, control, interest or influence, which by its very existence or action, and notwithstanding its objective, results in the limitation of the power of the governing apparatus of the State. 13 In this sense, the notion of contre-pouvoirs has a broader connotation than the one of 'checks and balances', which is considered to be its source of inspiration. 14 The status of contre-pouvoirs may indeed vary. Under the category of contre-pouvoirs fall not only those 'institutional' powers which check the political power in a State within a formal system of checks and balances/separation of powers, namely the judicial and the legislative branch of government, but also other political or social/economic powers. 15 The prevailing attribute of these contre-pouvoirs is their vocation to counter-balance the omnipotence of the political power. They might fulfil this aim either by participating in the exercise of the power (exercising functions of control) or − while positioned outside of the political power − by having a real influence and the possibility to resist in the abusive exercise of the power. 16 In the pages that follow, it will be argued that what is at stake in Article 18 cases, where the Court finds a violation of the Convention, is the obliteration of the contre-pouvoirs by the executive branch of government within a State. To substantiate this argument, it is necessary to firstly elaborate on the progression of Article 18 in time. The first part of this study will, thus, scrutinise the general economy of Article 18 with reference to the consecutive stages of its evolution within the system of the Convention (2). In the second part, the author will analyse this jurisprudential evolution on the misuse of power through the lens of the contre-pouvoirs within a State. To corroborate the claim that Article 18 pertains to the systemic deficiencies in the balance of powers within a State, it needs to be proven that not only all the contre-pouvoirs individually but also the whole system of contre-pouvoirs is suffering within that particular State' (3).

ARTICLE 18 ECHR: A CLAUSE 'SUBSISTING JUST IN CASE…'
Even though the founding fathers decided to include Article 18 in the text of the Convention, the positioning of this provision in the case-law of the Court remained unsettled for many years. Given the scarcity of its application until very recently, the exact purpose of this provision was rather obscure. In his commentary on Article 18 ECHR, in 1999, Professor Coussirat-Coustère asserted that Article 18 was neither obsolete nor out-dated but that it 'persisted just in case…'. 17 This assertion is fully confirmed nowadays by the recent jurisprudential evolution on Article 18.
The sections that follow will show how Article 18 generally evolved through time. The first section will focus on the preparatory works of the ECHR, to demonstrate how a provision on the misuse of power made it to the text of the Convention and how it is connected to the French doctrine of détournement de pouvoir. The second section will present how Article 18 has been perceived by the Court by also explicating how Merabishvili contributed to a dramatic jurisprudential evolution.

THE INCLUSION OF ARTICLE 18 IN THE EUROPEAN CONVENTION ON HUMAN RIGHTS
Unlike the texts of its day 18 and its source of inspirationthe Universal Declaration of Human Rightsthe ECHR contains a provision, that of Article 18, which pertains to the limitations on use of restrictions on rights. Only later would equivalent provisions be included in international The inclusion of Article 18 into the Convention is directly linked to the French influence of the time, as evidenced by the Convention's travaux préparatoires. 23 The drafting of Article 18 was a compromise between the French and British approaches on the restrictions of rights. 24 Unlike the French approach, the British one was hostile to the inclusion of a general restriction clause. 25 While it was finally the British approach that prevailed, this did not mean that the French approach was completely rejected. 26 On the contrary, the partisans of the French approach secured an important victory since it was their draft provision on the power of interference -Article 18 todaythat found its way to the adopted Convention text. 27 But much more than that, the French influence can be felt in the very content of the clause. As also acknowledged by the Grand Chamber itself, 28 Article 18 29 was described by the Conference of Senior Officials on Human Rights as an application of the détournement de pouvoir theory. 30 This explains why Article 18 bears its current name of 'clause anti-détournement'. 31 In French Administrative Law, a détournement de pouvoir takes place when an administrative authority uses its powers to serve a different purpose than the one for which those powers were conferred 19 to it. 32 While the State authorities abide by the letter of the law, they nonetheless step outside the 'spirit of [their] functions'. 33 The détournement de pouvoir doctrine has a purely jurisprudential origin without a precise textual basis 34 and is not per se known to the system of common law. As pointed out in scholarly writings: although the English courts will not typically quash an 'acte administratif' on the grounds of bad faith alone, it is true that they often arrive, by an elaborate process of statutory construction, at a result similar to that which would have been reached in the droit administratif by a simpler route. 35 Notwithstanding this observation, the theory of misuse of power is traditionally linked to French Administrative Law. In investigating détournement de pouvoir the reviewing court must assess 'the mental processes of the administrator' 36 in order to define the ulterior purpose of the challenged act. This is precisely the type of inquiry that the Anglo-American courts have refused to admit that they may make. 37 The parallel drawn up with the détournement de pouvoir, that is the misuse of power à la française, 38 offers some preliminary guidance as per the content of Article 18 ECHR. Nonetheless, it should be acknowledged that the historic interpretation based on the preparatory works is of limited importance to the Court, which indeed uses it but will more often rely on other methods of interpretation. The misuse of power is associated with the control of the internal legality of an administrative act and more precisely of its purpose. Two hypotheses of misuse of power are mainly envisaged: either the administrative act is foreign to any public interest (primary détournement de pouvoir) or it is taken in a public interest, but not in the one for which the powers necessary to take the act have been conferred to its author (secondary détournement de pouvoir). 39 It is the first hypothesis, considered as the more serious case of misuse of power, 40 which recalls the principle, that was to be the precursor to Article 18. This principle was formulated by the Legal Committee at the Consultative Assembly and provided for the 'prohibition of any restriction on a guaranteed freedom for motives based, not on the common good or general interest, but on reasons of State'. 41 The principle formulated by the founding fathers can potentially correspond to all four categories of cases where primary détournement de pouvoir takes place: 1. the actor has acted on his own personal interests; 2. the actor wanted to harm a private person; 3. the administrative agency acted for the purpose of benefiting some particular person; and 4. the administrative agency ignored the general public interest, even though it has not, strictly speaking, served private interests. 42 The drafters of the Convention wanted to exclude the possibility that the State 'intervenes to suppress, to restrain and to limit these freedoms for (…) reasons of state', 43 especially if it was 'to protect itself according to the political tendency which it represents, against an opposition which it considers dangerous'. 44 The conscious pursuit of such political motives is particularly detrimental to the democratic principle, 45 the fundamental ideal of the conventional system.
As in French Administrative Law, the misuse of power in the Strasbourg system implies an additional reproach of a moral nature. Indeed, the review of internal legality under the misuse of power became a 'morality check', as the renowned French legal theorist Dean Hauriou 46 pointed out. The censorship for misuse of power 'took the form of a moral condemnation of the most serious excesses of public authority' 47 because the error of law is accomplished in bad faith. Contrary to 'perfectly excusable' 48 miscarriages of justice, the misuse of power is related to the abuse of law involving a reproach for a conscious breach of duty, 49 for 'particularly scandalous' 50 attitudes of the administration.
Despite the aforementioned, the application of the concept of détournement de pouvoir is a rather demanding task, considering especially the difficulty to determine the legal purpose (but légal) of the administrative act and prove the purpose pursued by its actor, which is a psychological element hard to identify. 51 After all, the improper purpose must be 'susceptible of exerting some influence on the very substance of the administrate order'. 52 The censorship for détournement de pouvoir qualifies, thus, as an ultimum refugium for the French administrative judge which comes into the fray only when there is no other ground for sanction. 53 Just like Dean Vedel pondered: 'why to engage with a superfluous détournement de pouvoir?'. 54 This judicial practice seems to bear strong similarities to the one adopted by the Strasbourg organs, and it is to this practice that we shall now turn our attention.

THE TRANSITION TOWARDS A NEW ERA FOR ARTICLE 18
The idea that the examination of a claim under Article 18 ECHR is superfluous, and therefore the Article itself is without any real scope of application or reason of existence, has been raised in scholarly debate. This view was based on the fact that issues of misuse of power were absorbed by the examination of the interferences with substantive rights. 55 According to this view, Article 18 plays a supplementary role, inspiring and informing the interpretation of the other provisions of the Convention, but not being the primary provision under consideration. Its spirit was allegedly diffused in the general mechanisms of control and interpretation of the Convention. 56 Until recently commonly received as a 'dormant' clause, Article 18 has indeed been scarcely applied by the Convention organs. 57 In 1974 the European Commission on Human Rights, without however finding a violation of Article 18, established two crucial points for the interpretation of the clause: a. although Article 18 cannot apply alone, it can nevertheless be breached even if there is no violation of the Article in conjunction with which it is applied; and b. it can only be contravened if the Convention right which has been interfered with is subject to restrictionsthat is, is qualified rather than absolute. 58 Ever since and for fifty years, nothing in the case-law of the Court would suggest that Article 18 ECHR had any particular practical significance whatsoever. It would be only in 2004, in Gusinskiy v Russia, that the Court finds a violation of Article 18 in conjunction with Article 5 of the Convention for the first time ever, considering that the fact that the applicant, a media tycoon, had been offered a commercial agreement whilst in prison in exchange for the dropping 52 of charges against him, suggested that his prosecution pursued the ulterior purpose of intimidating him. 59 Gusinskiy offered optimism about the merit of Article 18 60 which was, up until that moment, nothing more than a 'neutralised' clause. 61 However, the new era ushered through the 2004 Gusinskiy judgment did not dramatically alter the status of Article 18 in the case-law of the Court. Even post-Gusinskiy, the solutions adopted by the Court when dealing with Article 18 cases would still be marked by a wide variability. 62  following the electoral defeat of the UNM, criminal proceedings were brought against the applicant for various offenses, including abuse of power. Ivane Merabishvili had recently been elected Secretary-General of the UNM, which became the main opposition party in the country. Relying on Article 5(1), (3) and (4) of the Convention, the applicant complained about the irregularities of his arrest and detention. 68 Furthermore, he alleged a violation of Article 18 combined with Article 5(1), claiming that the purpose of the criminal proceedings against him and of his pre-trial detention was to exclude him from the political scene and to obtain information from him on issues that had nothing to do with the criminal proceedings against him. 69 The applicant particularly referred to a night in December 2013, during which he was secretly removed from his cell to be questioned about the death of a former prime minister and the bank accounts of Mikheil Saakashvili, leader of the UNM. 70 In 2014, the applicant was found guilty of most of the charges against him and was serving a prison sentence when the Grand Chamber judgment was published on 28 November 2017. 71 The Grand Chamber in Strasbourg concluded, unanimously, that there had been no violation of Article 5(1) with regard to the applicant's arrest and pre-trial detention 72 and no violation of Article 5(3) as to the initial phase of his pre-trial detention. 73 However, the Court held unanimously, as to the violation of Article 5(3), that the continued detention was no longer based on sufficient grounds 74 and, by nine votes to eight, found in favour of a violation of Article 18 in conjunction with Article 5(1). 75 It is on this latter point that the particular importance of the Merabishvili judgment lies. According to the Grand Chamber, the restriction of the applicant's right to liberty primarily served a purpose other than the purpose stated, and one not provided for in the Convention. 76 While initially the purpose of his detention had been the investigation of offences based on a reasonable suspicion, it later on transformed into obtaining information about a former Prime Minister's death and about Mikheil Saakashvili's bank accounts. 77 In its judgment, the Grand Chamber clarified the principles applicable to cases in which Article 18 claims are made. The clarifications provided by the Court are broadly concerned with three main points. In the first place, the Grand Chamber delimited the relationship of Article 18 with the other clauses of the Convention, confirming that the former does not exist independently. 78 Indeed, Article 18 can only be applied in conjunction with an Article of the Convention or the Protocols thereto setting out a right or freedom that may be subject to restrictions permitted by the Convention. 79 Despite this, Article 18 has an autonomous scope insofar as it can be violated without there being a violation of the article with which it is combined. 80  where one would be faced with a plurality of purposes, meaning the restriction would serve numerous purposes at the same time. Whereas this could be compatible with the substantive Convention provision which authorised the restriction, because it pursued an aim permissible under that provision, it could nonetheless still infringe Article 18 since the restriction was chiefly meant for another purpose that was not prescribed by the Convention. In other words, there would be a violation of Article 18 if out of all the purposes, the one not prescribed by the Convention was the dominant one. 81 Third, the Court clarified its jurisprudence on the question of proof regarding Article 18, holding that it must follow its usual approach, without applying special rules. 82 While the in-depth analysis of the Court's judgment in Merabishvili cannot be exhausted in the present article, 83 it is noteworthy that the introduction of the 'predominant purpose' test has triggered a considerable debate. The eight dissenting judges − who agreed with the principles set in the judgment but disagreed with the majority as to their application to the facts of the case − seemed to acknowledge and accept the fact that the 'very high threshold (…) manifested in the predominant-purpose test' implies that Article 18 can only apply in 'the most serious of cases'. 84 Sounds of critique were, however, expressed in the concurring opinions. In his concurring opinion, Judge Serghides critically reflected on the ambiguity of the new test 85 and in their joint concurring opinion, Judges Yudkivska, Tsotsoria and Vehabović suggested that when there is evident misuse of State machinery for improper political ends, 'the Court should treat it by default as the predominant purpose'. 86 The 'predominant purpose' test introduced in Merabishvili is not an invention of the Court of Strasbourg. Even though, it is not explicitly acknowledged by the Court, it seems to have been inherited from the French doctrine of détournement de pouvoir and the concerns pertaining to its application are also relevant to the French Administrative Law. 87 It is left to be seen whether future applications of the test by the Court will indeed raise concern in this regard. 88 Ever since the Merabishvili judgment, the Court has delivered a string of judgments that contributed to the further development of the interpretation of Article 18. From 2004 until April 2019, the Court has found a violation of Article 18 in thirteen cases, all of them in conjunction with Article 5 of the Convention (right to liberty and security) 89 and, in two of them, also in conjunction with Article 8 (right to respect for private and family life) 90 and Article 11 (freedom of assembly and association). 91 In all cases, prominent figures in the political and/or economic arena of the country were prosecuted and detained for purposes other than those officially stated by the authorities and prescribed by the Convention. In the context of what is perceived as 'political justice', the proceedings against the applicants served ulterior purposes, namely the implementation of the government's agenda or the punishment of those who were opposing to it.
So far, the violations of Article 18 seem to have an Eastern European character. Russia, Moldova, Ukraine, Azerbaijan, Georgia and Turkey are the States against which violations of Article 18 were found. With respect to some of these States, a violation of Article 18 was found in more than one case; Russia, 92 Ukraine 93 and certainly Azerbaijan 94 seem to qualify as 'repeat offenders'. This observation might not come as a surprise given the reoccurent challenges pertaining to the rule of law in these countries during the past years. In any case, though, we should always be reminded that no State can enjoy immunity from the threats of what Pierre-Henri Teitgen describes as the 'eternal reason of State'. 95 'Behind the State, whatever its form, were it even democratic, there ever lurks as permanent temptation, this reason of State'. 96 Notwithstanding the evolution of the case law on Article 18, as described previously, the specific role of the 'clause anti-détournement' in the Strasbourg system is yet to be determined. Article 18 in conjunction with Articles 17 and 35(3)(a) ECHR form the basis of the Strasbourg theory of abuse of rights. This theory revolves around the regulation of the 'proper use by European human rights actors of rights and freedoms' 97 and puts forward the requirement of good faith. 98 Admittedly, the requirement of good faith permeates the entirety of the ECHR system, especially considering its intrinsic link with the fight against arbitrariness. As the Grand Chamber pointed out in Saadi, '[o]ne general principle established in the case-law is that detention will be "arbitrary" where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities'. 99 If bad faith, deception, or hidden agenda (s) 100 relate to the idea of arbitrariness, it would be legitimate to ask what the added value is of the application of the 'clause anti-détournement' in this regard. 101 It is this question that the following section will address.

THE CONTRE-POUVOIRS APPROACH UNDER ARTICLE 18 ECHR
Considering the continued evolution of the case law on Article 18 of the Convention, especially since the Merabishvili judgment, it is now possible to define what is at stake in Article 18 cases. It goes without saying that the prohibition of the misuse of power pertains to the protection of the values of democracy and the rule of law. More precisely, however, it is the entire system of contrepouvoirs within a State that is protected under Article 18. The following lines will analyse this contre-pouvoirs approach under Article 18 ECHR.
In the next two sections, two points will be demonstrated. First, that the case law on Article 18 of the Convention pertains to every contre-pouvoir within a State, being it institutional, political, social or economic. Second, it will be shown that, overall, the finding of a violation on the basis of Article 18 is founded on the fact that the whole system of contre-pouvoirs is suffering within that particular State.

IDENTIFYING THE CONTRE-POUVOIRS IN ARTICLE 18 CASES
In light of the case law on Article 18, the involvement of contre-pouvoirs in cases of abuse of power revolves around two axes. First, a misuse of power occurs when the political, social and economic contre-pouvoirs of the State are under threat. Second, a misuse of power occurs when the institutional contre-pouvoirs fail to fulfil their functions effectively. considers dangerous. 102 Considering the typology of the cases where the Court found a violation of Article 18 in conjunction with Articles 5, 8 or 11 of the Convention, it is indeed clear that Article 18 can be conceived 'as a tool for addressing the suppression of dissent and the silencing of political opposition'. 103 In a large number of cases, eminent politicians belonging to the political opposition within the State 104 were targeted by the State. In the Lutsenko v Ukraine case, the applicant was the Former Minister of the Interior and the leader of a political opposition party. 105 Similarly, in the Tymoshenko and Merabishvili cases, the applicants were former Prime Ministers and leaders of the leading opposition parties in the country. 106 In the more recent Navalnyy 107 and Selahattin Demirtaş (No. 2) cases, the applicants were also leaders of the political opposition. 108 The eminent members of the political opposition constituted the first category of persons targeted by the executive branch. This is not, however, the only category of individuals whose rights are restricted for political reasons. Opposition to the ruling power within a State might as well derive from other entities acting as social contre-pouvoirs within a democratic society.
As clarified by the Court in Rashad Hasanov and others, the political motivation of the restrictions to rights is conceived in a broad sense. In this case against Azerbaijan, the Court did not accept the government's assertion 'that the accusations against the applicants could not be politically motivated because they had not been an opposition leader or a public official'. 109 According to the Court, '[i]t is undisputed that the applicants were civil society activists and board members of [the civic movement] NIDA, which was one of the most active youth movements in the country and had been behind a number of protests against the government'. 110 Indeed, an important number of cases where the Court considered the accusations and prosecution of the applicants as politically motivated was brought before the Court by frontline activists connected to civil society organisations. 111 The Azerbaijani cases, in which the Court found a violation of Article 18 in conjunction with Article 5, are pertinent in this regard.
More precisely, the applicant in Ilgar Mammadov was involved in various political organisations as well as local and international non-governmental organisations for a number of years. In 2008, he co-founded the Republican Alternative Civic Movement ('REAL') and in 2012 he was elected its chairman. He also held the position of Director of the Baku School of Political Studies for several years, which is part of a network of schools of political studies affiliated with the Council of Europe. 112 In a similar vein, Mammadli was also a well-known civil society activist and human rights defender, 113 just like Rasul Jafarov. The latter was chairman and one of the cofounders of Human Rights Club, a non-governmental organization ('NGO') specialising in the protection of human rights. 114 High-ranking members of other NGOs have also been targeted by the State in Azerbaijan. In the case of Rashad Hasanov and others the applicants were board members of the civic movement NIDA, an NGO established by a group of young people in February 2011. According to its manifesto, NIDA wants liberty, justice, truth and change in Azerbaijan and it rejects violence and uses only non-violent methods of struggle. 115 In the more recent Aliyev case, the applicant targeted for his political activity was the chairman of the Legal Education Society, an NGO specialising in legal education. Mr. Aliyev was a well-known humanrights lawyer and civil-society activist, who represented applicants before the ECtHR in a large number of pending cases. 116 The aforementioned cases pertain to individuals who are adherent to social forces. The Court has also recognised the existence of political motivation to restrictions of the rights of individuals representing economic powers within a State. It is noteworthy that the first case in which the Court found a violation of Article 18 in conjunction with Article 5 of the Convention concerned Mr. Gusinskiy, a media tycoon in Russia and former Chairman of a private media holding company. The Cebotari case also falls within the same category of cases where the economic contrepouvoirs within the State are targeted. Mr. Cebotari was the head of a Moldovan State-owned power distribution company, thus, an eminent representative of the economic contre-pouvoirs in Moldova. 117

The failure of the institutional contre-pouvoirs
It goes without saying that not every restriction on the rights of individuals, who are active in entities that function as contre-pouvoirs to the State-power, qualifies as a restriction prohibited under Article 18. The same even goes for those restrictions that are found incompatible with the provisions of the Convention that allow for certain types of restrictions. It was explicitly stressed by the Court that a claim under Article 18 is a 'very serious' one. 118 Such a claim entails a general rule, 119 that 'the whole legal machinery of the respondent State (…) [is] ab intio [sic] misused, that from the beginning to the end the authorities were acting with bad faith and in blatant disregard of the Convention'. 120 The 'whole legal machinery' of a State comprises all the institutional powers of the State, namely the executive, the legislative and the judicial branch of government. The systemic failure implied by an Article 18 violation does not solely reflect the misuse of the executive power, as exercised by the governing center of the State, but also the ineffective exercise of the legislative and judiciary power. The latter are expected to function as institutional contre-pouvoirs to the ruling power within a democratic society, only that in the cases where the Court has found a violation of the Article 18, they have failed to do so.
In its most recent string of judgments, adding to the clarification of the general principles concerning the interpretation and application of Article 18 of the Convention that occurred in Merabishvili, the Court has explicitly acknowledged this failure.
Particular emphasis is placed on the failure of the judiciary to fulfil its role as the ultimate guarantor of rights within a democratic society governed by the rule of law. 121 In the cases brought before the Court against Azerbaijan, the Court payed very close attention to how the judiciary exercised its function of control over the acts of the executive. The Court observed that with respect to the judicial review of the lawfulness of the applicant's detention, the domestic courts 'limited their role to one of mere automatic endorsement of the prosecution's requests' 122 without conducting a 'genuine' 123 and independent 124 review of the 'lawfulness' of the detention. Thus, they did not verify the existence of reasonable suspicion underpinning the applicant's arrest and detention and the legitimacy of its purpose. 125 In the Aliyev judgment issued in September 2018, the Court was particularly vocal in this regard. When examining the case under Article 46 of the Convention and taking also into consideration the rest of the cases where Azerbaijan was found to have breached Article 18, the Court consider[ed] important to stress, as a matter of concern, that the domestic courts, being the ultimate guardians of the rule of law, systematically failed to protect the applicants against arbitrary arrest and continued pre-trial detention in the cases which resulted in the judgments adopted by the Court. 126 The failure of the judiciary to protect the applicants against a hidden agenda does not necessarily have to fall within an orchestrated attempt by both the executive and the judiciary from the beginning. It is not necessary that both branches of government share and serve a common ulterior purpose from the outset. 127 For a violation of Article 18 to occur, the sole failure of the judiciary to act as a contre-pouvoirergo the failure to unveil the ulterior motive of the executivesuffices. In my view, such statements could only be seen as adequate proof of an ulterior purpose behind the judicial authorities' decisions, in line with the government authorities' own agenda, if the Court had found that the Turkish justice system was not sufficiently independent from the executive (compare Merabishvili, cited above, para 324). In the absence of such a conclusion (see paragraph 271 of the judgment), the majority should in my view have avoided engaging in speculation, as for example when they asserted that the applicant's continued detention had had a negative effect on the 'no' campaign relating to the proposed Bill to amend the Constitution with a view to introducing a presidential system, or that the political climate in recent years had created an environment capable of influencing certain decisions by the national courts'. This is particularly corroborated by the findings of the Court in its judgment Selahattin Demirtaş (No. 2). In that case, which is currently pending before the Grand Chamber, 128 the Court attributed the attitude of the judicial authorities to the influence of the political climate after the coup d'état in Turkey. The Court observed that the tense political climate in Turkey during recent years has created an environment capable of influencing certain decisions by the national courts, especially during the state of emergency. In that context, concordant inferences drawn from this background support the argument that the judicial authorities reacted harshly to the applicant's conduct, bearing in mind his position as one of the leaders of the opposition, and to the conduct of other HDP members of parliament and elected mayors, as well as to dissenting voices more generally. 129 The judiciary may not be the only branch of government failing to act efficiently as a contrepouvoir against the misuse of power by the governing power within a State. The finding of a violation under Article 18 implies a systemic malfunction of the State machinery, to the extent that the criminal justice system is perverted into an instrument of suppression. 130 This perversion might as well have its roots in the decisions taken by the legislator herself.
In many recent Article 18 cases where the Court was called to adjudicate upon, it particularly took note of the evolution of the relevant legislative framework. Assessing the general contextual evidence in the cases Aliyev, Navalnyy and Selahattin Demirtaş (No. 2), the Court observed: the increasingly harsh and restrictive legislative regulation of NGO activity and funding in Azerbaijan; 131 the important legislative changes which took place in Russia, increasing and expanding liability for a breach of the procedure for conducting public events; 132 but also the fact that national laws were increasingly being used to silence dissenting voices in Turkey. 133 In light of the preceding observations, the finding of a violation of Article 18 is an indication of the malfunction of the whole system of power within a State. The governing power of the State, acting in bad faith, orchestrates the silencing of the political, social, economic contre-pouvoirs, with the institutional contre-pouvoirs being unable to counter-balance this misuse of power from the beginning to the end. Such an alarming situation, both for the democracy and the rule of law, entails the crossing of the 'significantly high threshold' required by the Court for the finding of a violation of the  136 Up until recently, the violation of Article 18 was based on the fact that the State prosecuted the applicants on the basis of the pursuit of specific ulterior purposes. These typically included their critical attitude towards the State authorities 137 and mostly against the government itself, 138 for the diffusion of information that the government wished to keep secret, 139 for controlling their affairs in the benefit of the government 140 or for collecting information of a political nature. 141 It is undisputable that all the aforementioned ulterior purposes implied a persecution for political reasons closely related to the status of these individuals. However, the Court did not explicitly accept that such a situation systematically targeted the democratic functioning of the society in itself, via the neutralisation of certain entities of the political scene.
Even in the Merabishvili case, a revolutionary case for the interpretation of Article 18, the Grand Chamber did not base the finding of a violation of Article 18 on the allegation that the applicant's arrest and pre-trial detention were meant to remove him from the political scene. 142 If, of course, such a conclusion is dependent on the assessment of the factual circumstances of the case, it is noteworthy that the judgments which followed, revealed what we believe to be the very essence of a violation of Article 18.
On 20 September 2018, the Court published its judgment on the case Aliyev v Azerbaijan, finding a violation of Article 18. With the Aliyev case included, there were five judgments in which the Court found a prohibited, under the Convention, misuse of power by Azerbaijan. Thus, in the framework of the examination of Article 46 of the Convention, the Strasbourg Court explicitly referred to the fact that these judgments 'reflect a troubling pattern of arbitrary arrest and detention of government critics, civil society activists and human-rights defenders through retaliatory prosecutions and misuse of criminal law in defiance of the rule of law ' The explicit identification of a 'troubling pattern' rather than an 'isolated incident' is undoubtedly of great importance. The Court acknowledged that the applicant was not the only government critic detained and searched for ulterior purposes. However, a systemic approach is not solely related to the quantitative characteristics of a situation but also to the qualitative ones. Even as an isolated incident, the detention of the applicant, a human rights defender, and search of his home and office for the purpose of silencing and punishing him and impeding his work, would have specific implications on the functioning of the contre-pouvoirs within a State. As the Court itself stressed: it 'cannot lose sight of the chilling effect of those measures on the civil society at large, whose members often act collectively within NGOs and who, for fear of prosecution, may be discouraged from continuing their work of promoting and defending human rights'. 144 The 'chilling effect' rationale as developed in the case-law of the ECtHR is in itself underresearched by scholars. 145 In a similar vein, its eventual value in the context of Article 18 cases also remained, until a certain point, underexplored by the Court. 146 In general, the Court has put particular emphasis on the chilling effect of measures adopted against a particular applicant on the exercise of criticism to government by the members of the judiciary 147 or the legislative. 148 It would thus have been expected that the Court would have done the same in the context of Article 18 cases. It is not an exaggeration to suggest that this 'chilling effect' on civil society, on the contre-pouvoirs and on the state of democracy 149 in general forms part of the ulterior purpose pursued by the State when misusing its power. 150 The Court progressively acknowledged this reality. Even though it does not expressis verbis refer to the 'chilling effect rationale', 151 the Grand Chamber, for the first time in the Navalnyy case, unequivocally endorsed the systemic dimension of Article 18 violations. The Court observed that: At the core of the applicant's Article 18 complaint is his alleged persecution, not as a private individual, but as an opposition politician committed to playing an important public function through democratic discourse. As such, the restriction in question would have affected not merely the applicant alone, or his fellow opposition activists and supporters, but the very essence of democracy as a means of organising society, in which individual freedom may only be limited in the general interest, that is, in the name of a 'higher freedom' referred to in the travaux préparatoires. 152 The same approach was adopted by the Court in the Selahattin Demirtaş v Turkey (No. 2) judgment issued on 20 November 2018. 153 In both cases the Court explicitly accepted that the ulterior purpose pursued by the State was the suppression of political pluralism and the limitation of the freedom of political debate, which forms part of 'effective political democracy' governed by 'the rule of law'. 154 These affirmations of the Court mark another landmark evolution in the case law of Article 18 since the Merabishvili judgment.
It should be acknowledged though that, to a certain extent, it was Merabishvili which set the basis for such a systemic approach. In this 2017 judgment the Grand Chamber clarified, among other things, its stance on the questions of proof, making also clear that the Court does not restrict itself to direct proof in relation to complaints under Article 18 of the Convention 155 but also endorses the possibility of taking circumstantial evidence into consideration. 156 Thus, the Court can and does also take into account the contextual background of a case, reports or statements by international observers, non-governmental organisations or the media, or the decisions of other national or international courts, particularly with a view to shed light on the facts, or to corroborate findings made by the Court. 157 This is especially important for Article 18 cases, where the suffering of the democratic values is the result of systemic deficiencies, and the individual cases of the applicants are just the proverbial tip of the iceberg.
The moral considerations that are inherent to the 'misuse of powers' à la strasbourgeoise are closely connected to its structural dimension. As it was already demonstrated, a violation of Article 18 implies that the function of the whole machinery of the State is wanting.
The ongoing evolution of the case law under Article 18 reflects the shift of the Court towards systemic justice, where the Court evaluates the compatibility of a general context with fundamental pirnciples. This trend is not new to the Court. The evolution of the conventional exigencies has gradually put the separation of powers within the State into the fray of the European case law. Even if it is true that the Court does not apply any specific theory of separation of powers, the protection of human rights as enshrined in the Convention cannot be guaranteed unless the activities of the executive are delineated by the legislative and the judiciary. 158 The ECtHR thus scrutinises the institutional designs within the State Parties to the ECHR, notwithstanding the fact that it does not qualify as a constitutional court. Even though the mandate of the ECtHR is to look at the working of the system from the perspective of its effects on individuals, there are still spill-over effects. 159 A change made to accommodate a requirement related to an 153. Selahattin Demirtaş v Turkey (No. 2) (n 89) para 272: 'In this connection, the Court observes that the applicant does not see himself solely as an individual victim of a violation. His contention is that he has been kept in pre-trial detention chiefly on account of his position as one of the leaders of the political opposition. The Court considers that in such an eventuality, it is not only the applicant's rights and freedoms as an individual that could be said to be under threat but the whole democratic system itself. In the Court's opinion, an ulterior purpose of that kind would undoubtedly pose a serious problem for democracy'. individual can have effects on separation of powers within a member State of the Council of Europe. 160 This systemic justice trend is dominant in the case law relating to Article 18. The Court has explicitly acknowledged in Selahattin Demirtaş v Turkey (No. 2) that 'it is not only the applicant's rights and freedoms as an individual that could be said to be under threat but the whole democratic system itself'. 161 Article 18 could therefore function as an early warning system for European States that are at risk of becoming an illiberal democracy or even of reverting to totalitarianism and the destruction of the rule of law. 162 In this context, it comes as no surprise that in the Navalnyy case, one year after Merabishvili, the Grand Chamber put emphasis on the 'the structural inadequacy of the regulatory framework, which failed to provide effective legal safeguards against abuse' 163 and clarified under Article 46 of the Convention that 'this situation in principle calls for the adoption of general measures by the respondent State'. 164 Even though the application of Article 46 remains scarce in the case law, 165 the systemic character of Article 18 cases justifies the recommendation of specific general measures 166 by the Court itself.

CONCLUSION
The aspiration of the present study was to clarify what is precisely at stake in the cases where the ECtHR has found violations of Article 18. The analysis of the relevant case law conducted in this article suggests that the finding of a violation of Article 18 of the ECHR manifests the male fide efforts of the executive branch of government to erode the social, political and economic contrepouvoirs within a State due to thein toto, orchestrated or notdysfunction of the institutional contre-pouvoirs. Such an approach points out the inherent moral and structural characteristics of the anti-détournement clause of the Convention.
Any violation found on the basis of the clauses of the Convention can demonstrate dysfunctions related to the democracy and rule of law within a State. But a violation of Article 18 is not just any violation, just like the case law on Article 18 is not just any case law. It has been demonstrated that a violation of Article 18 surpasses the framework of a specific individual case and reflects the intentional and structural dysfunction of the whole State machinery.