Case Watch: Politics, Justice, and Article 18

In “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to our work to advance human rights law around the world.

The European Court of Human Rights (ECHR) very rarely rules on Article 18 of the European Convention. Article 18—which states that any restrictions on the rights and freedoms permitted by the convention “shall not be applied for any purpose other than those for which they have been prescribed”—provides an important residual protection. It means that even when the government presents a formal reason that could justify restricting someone’s rights—the commission of a crime, for example—it would still be a violation if it were really done for some ulterior purpose.

In recent years, a number of applicants have raised Article 18 to claim that their arrest and detention violated Article 5, concerning deprivation of liberty, because it was politically motivated. (Because Article 18 is not a stand-alone article, the court always rules on it in conjunction with another article.) These applicants have argued that the unspoken purpose behind their being charged and detained was to prevent them from participating in politics—adding fuel to already controversial cases.

Take, for instance, Khodorkovskiy v. Russia, the case brought to the ECHR by the former Yukos oil magnate and Putin rival who has been in detention since 2003. (He was convicted and sentenced to 9 years in 2005.) In his application to the European Court, Khodorkovskiy argued for a breach of Article 18 because, he asserted, his detention was politically driven. But the court does not take lightly claims that a government has detained someone for ulterior motives. In its 2011 judgment in Khodorkovskiy’s case, the court found numerous violations of Article 5, but it refused to find a violation of Article 18.

In contrast, in Lutsenko v. Ukraine in 2012, Ukraine’s former minister of internal affairs sought accountability for his own arrest and detention in 2010. In that case, the ECHR did find that Article 18 had been violated—in addition to Article 5—because it agreed the real reason for Lutsenko’s detention had been to punish him for publicly disagreeing with accusations against him and for asserting his innocence. (Lutsenko was recently pardoned by the president of Ukraine and released.)

On April 30, 2013, the European Court again found a breach of Article 18 in the case of Tymoshenko v. Ukraine, the complaint brought by Yulia Tymoshenko, the former prime minister of Ukraine who was arrested in August of 2011 and convicted that October. Tymoshenko, who was arrested during the lead-up to parliamentary elections, has long maintained that her detention is politically motivated.

The Tymoshenko judgment has prompted a burst of interest in interpreting Article 18. Many, including Tymoshenko herself, her defense team, numerous lawyers and experts in Ukraine and in the media have seized on the court’s finding on Article 18 as evidence that her arbitrary detention was politically motivated and orchestrated by the opposition. On the day of the ECHR judgment, Tymoshenko declared that she considers the ruling on Article 18 to be a confirmation that she is a “political prisoner” and this acknowledgement is “more precious to her than any title or award.”

A week after the judgment, the spokesperson for the ECHR, Roderick Liddell, made a statement to the Ukrainian media clarifying that in its decision the court did not confirm any political motivation behind Tymoshenko’s arrest. He said the judgment focused solely on the fact of the arrest and pretrial detention of the defendant prior to all court hearings at the national level. Liddell underscored that the crux of the judgment is the fact that Tymoshenko’s pretrial detention was unnecessary and was based on grounds that are not within the reasons listed under Article 5. This does not necessarily mean, however, that the court accepted Tymoshenko’s claims that the detention was designed to prevent her from standing in parliamentary elections. Rather, the court focused on the fact that she was put in pretrial detention after one of the judges decided that she showed disrespect towards him during one of the hearings.

Despite the controversy around the meaning of a confirmed violation of Article 18, all seem to agree that this ECHR ruling does not change Tymoshenko’s actual status. She has been sentenced to seven years in prison and faces other charges. Her defense team still plans to use the ECHR judgment to demand Tymoshenko’s permanent release from prison and for all charges to be dropped.

Eyes turn now to Ukraine’s president, Viktor Yanukovich, who seems to be the principal decision maker in this highly controversial case. Just two days before the ECHR judgment, Yanukovich reconfirmed that considering a pardon of Tymoshenko is still premature. Tymoshenko herself has said she believes the president’s next move on the case will be no move at all.

The issue of unnecessary pretrial detention is much bigger than the cases of Tymoshenko and Lutsenko. For more information on the impact of excessive pretrial detention and possible alternatives, please see the Global Campaign for Pretrial Justice

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