13 December 2017

Expect more Art. 18 cases before the ECtHR - Madsen in RAPSI

Mikael Madsen has given an interview to the Russian legal news agency RAPSI regarding ECHR Art. 18.

The principle of good faith is the cornerstone of the whole European system of rights protection. As a consequence, establishing before the European Court of Human Rights (ECtHR) that a respondent state had ulterior motives requires an extra standard of proof, which is extremely difficult to achieve in practice. Additionally, the Court can refrain from looking into the Art.18 challenge, if it finds that another Convention right has been violated. As a result, the number of successful cases is extremely small.

The ECtHR judgment in Merabishvili changes the standard for adjudicating Art.18 cases by introducing the concept of “predominant reason”. It makes of establishing bad faith in the actions of the authorities slightly easier. As a result, the number of Art.18 cases before the Court will probably grow. Yet, on the whole, the task of proving a violation of Art.18 will remain challenging. Furthermore, calling out a state for acting in bad faith is a sensitive issue from a political standpoint.

For the text of the interview in Russian

Mikael Rask Madsen is Center Director and Professor at the Faculty of Law, University of Copenhagen, Centre of Excellence for International Courts (iCourts). Mikael Rask Madsen’s research is focused on globalization and the role of legal institutions and professionals in these processes, including international courts and their evolutions and challenges, the role of legal elites in the globalization, the development of the legal profession and legal knowledge and power.