fact that the actions of State authorities are protected by a presumption of legal conduct; hence an
irregular action by the State authorities must be proved in order to override the presumption of good
faith.176 (underlining added).
130. As can be observed in this paragraph of the Judgment, the ICourtHR cited several
precedents of the European Court in the footnote and, in my opinion, they warrant being
examined in greater depth. In order to understand these precedents, it should be recalled
that Article 18 of the European Convention on Human Rights indicates that “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.”
131. Regarding the possibility of applying Article 18 of the European Convention, the
Strasbourg Court has indicated that: (i) Article 18 of the Convention does not have an
autonomous role: (ii) that the said article can only be applied in conjunction with, or in
relation to, the articles of the Convention that establish subjective rights, and (iii) from the
wording of Article 18, it is understood that a violation of a right or freedom can occur only
when the said right is subject to a restriction permitted under the Convention.
132. In the Judgment that inspires this opinion, the ICourtHR cited the cases of Gusinskiy
v. Russia, Cebotari v. Moldova, and Lutsenko v. Ukraine. In this regard, it is worth
underscoring that, in the last two cases, the European Court of Human Rights declared the
violation of Article 18 of the Convention. Indeed, in the case of Cebotari v. Moldova it
indicated that:
ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION AND OF ARTICLE 18 OF THE
CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 5
48. The Court reiterates that in order for an arrest on reasonable suspicion to be justified under
Article 5 § 1 (c) it is not necessary for the police to have obtained sufficient evidence to bring
charges, either at the point of arrest or while the applicant is in custody (see Brogan and Others
v. the United Kingdom, judgment of 29 November 1988, Series A no. 145-B, pp. 29-30, § 53).
Neither is it necessary that the person detained should ultimately have been charged or brought
before a court. The object of detention for questioning is to further a criminal investigation by
confirming or dispelling suspicions which provide the grounds for detention (see Murray v. the United
Kingdom, judgment of 28 October 1994, Series A no. 300-A, p. 27, § 55). However, the requirement
that the suspicion must be based on reasonable grounds forms an essential part of the safeguard
against arbitrary arrest and detention. 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 (see Fox, Campbell
and Hartley v. the United Kingdom, judgment of 30 August 1990, Series A no. 182, pp. 16-17, § 32).
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.
49. The Court further reiterates that Article 18 of the Convention, like Article 14, does not have an
autonomous role. It can only be applied in conjunction with other Articles of the Convention. As in the
case of Article 14, there may be a violation of Article 18 in connection with another Article, although
there is no violation of that Article taken alone. It further follows from the terms of Article 18 that a
reasonable indications that he had committed an offense, but also for other reasons related to the prosecution’s
attempt to file charges against the applicant for publicly contesting the accusations against him. Cf. European
Court of Human Rights, Case of Gusinskiy v. Russia, Judgement of 19 May 2004, paras. 71 to 78; Case of Cebotari
v. Moldova, Judgement of 13 February 2008, paras. 46 to 53, and Case of Lutsenko v. Ukraine, Judgement of 3
July 2012, paras. 100 to 110.
176
The ICourtHR has indicated that direct evidence, whether testimonial or documentary, is not the only
evidence that may legitimately be considered to provide grounds for the judgment. Circumstantial evidence,
indications and presumptions may also be used, provided that consistent conclusions concerning the facts can be
inferred from them”. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4,
para. 130.
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