violation can only arise where the right or freedom concerned is subject to restrictions permitted
under the Convention (Gusinskiy v. Russia, cited above, § 73).
[…]
53. The Court recalls that the restriction on the right to liberty under Article 5 § 1(c) must be
justified by the purpose of that provision. In the instant case, the Government has failed to satisfy the
Court that there was a reasonable suspicion that the applicant had committed an offence, with the
result that there was no justification for his arrest and detention. Indeed, having regard to its
conclusion in paragraph 141 of the Oferta Plus judgment (cited above) 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 (underlining added).
133.
While in the case Lutsenko v. Ukraine, the European Court stated that:
105.
The Court notes in this respect that Article 18 of the Convention does not have an
autonomous role and can only be applied in conjunction with other Articles of the Convention
(Gusinskiy v. Russia, no. 70276/01, § 75, ECHR 2004-IV). […]
106.
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.[…]
107.
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 a breach of that Convention provision has
been found. Thus, in Gusinskiy v. Russia (cited above, § 73–78), the Court accepted that the
applicant’s liberty had been 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 for the Press. It was clear from that agreement that the applicant’s detention had
been 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 circumstances where the applicant’s arrest was visibly linked to an application pending
before the Court.
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 crimes committed 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 (underlining added(.
39
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